DW v RW [2013] QDC 163

DISTRICT COURT OF QUEENSLAND CITATION: DW v RW [2013] QDC 163 PARTIES: DW (Applicant) and RW (As executor of the Will of JW deceased) (Respondent) FILE NO/S: RD54/2011 DIVISION: Civil PROCEEDING: Originating Application ORIGINATING COURT: Rockhampton DELIVERED ON: Rockhampton DELIVERED AT: 19 July 2013 HEARING DATE: 18, 19, 20 and 21 June 2013 JUDGE: Smith DCJ ORDER: 1. That provision be made for the proper maintenance and support of DW out of the estate of JW by payment of a lump sum of $50,000 2. Written submissions on the question of costs to be filed and served by the parties within 14 days CATCHWORDS: SUCCESSION – FAMILY PROVISION AND MAINTENANCE – WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION Criminal Law (Sexual offences) Act 1978 (Q) Succession Act 1981 (Q) s 41 Andrew v Andrew [2011] NSWSC 115 Bladwell v Davis [2003] NSWSC 882 Briginshaw v Briginshaw (1938) 60 CLR 336 Coates v National Trustees and Executors and Agency Co Ltd (1956) 95 CLR 494 Collins v McGain [2012] NSWCA 190 Collins v Mutton [2012] NSWSC 548 Dawson v Joiner [2011] QSC 385 Ellis v Leeder (1951) 82 CLR 645 Grey v Harrison [1997] 2 VR 359 Herr v Fitzgibbon [2008] NSWSC 297 McKay v R (1935) 54 CLR 1 -- 1 of 32 -- 2 Messenger v Kelly [2008] QDC 125 Parker v Parker [2006] NSWSC 473 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Re Beard [1963] Qd R 90 Re Fulop (1987) 8 NSWLR 679 Ross v R (1922) 30 CLR 246 Singer v Berghouse (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 COUNSEL: Ms C Brewer for the Applicant Mr S Deaves for the Respondent SOLICITORS: Thynne and McCartney for the Applicant Grant and Simpson for the Respondent Introduction [1] This is an application by the Applicant, DW, for an order pursuant to s 41 of the Succession Act 1981 (Q) (“the Act”) for provision from the estate of JW, his mother (“the mother”). [2] I have not published the names of the parties because of the provisions of the Criminal Law (Sexual Offences) Act 1978. [3] In my view publication of the names may lead to identification of the daughters of RW, DW and KW, who were complainants against SW. [4] I have placed with the file a list of the identities of the parties and properties. [5] The trial proceeded over four days between 18 June 2013 and 21 June 2013. The parties filed and relied upon a number of affidavits. [6] I have had regard to the contents of the affidavits, the oral evidence, the submissions made by counsel and the exhibits in reaching my decision in this matter. [7] I was greatly assisted by the way in which the witnesses presented in the witness box in making the findings of fact in this matter. The background [8] The mother died on 4 February 2011. Her last will (Exhibit 1-DGW1) appointed her son RW as sole executor and trustee of her will. [9] She gave her property at Caroline Street Rockhampton to her trustee on trust to permit her husband SW to reside in the house for life. [10] On his death the house and the rest and residue of her estate was left to her daughter JEW (“the daughter”). [11] SW died on 30 September 2012. He also left his estate to the daughter. It is believed the net value of his estate is somewhere in the order of $150,000. [12] Caroline Street has been sold for $389,036.45. -- 2 of 32 -- 3 [13] The estate of the mother taking into account the costs of the parties is in the order of $223,000. [14] As indicated, the daughter is to inherit both sums. [15] There were four children of the relationship between SW and the mother. SW and the mother married in 1937. [16] The daughter was born on 17 April 1938, KW was born on 16 July 1939, DW was born on 30 September 1940 and RW was born on 11 April 1948. [17] DW brought this claim on 28 October 2011. Relevant legal principles [18] Section 41 of the Succession Act 1981 (Q) relevantly provides: “41 Estate of deceased person liable for maintenance (1) If any person (the deceased person) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person's spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant. (1A) However, the court shall not make an order in respect of a dependant unless it is satisfied, having regard to the extent to which the dependant was being maintained or supported by the deceased person before the deceased person's death, the need of the dependant for the continuance of that maintenance or support and the circumstances of the case, that it is proper that some provision should be made for the dependant. (2) The court may— (a) attach such conditions to the order as it thinks fit; or (b) if it thinks fit—by the order direct that the provision shall consist of a lump sum or a periodical or other payment; or (c) refuse to make an order in favour of any person whose character or conduct is such as, in the opinion of the court, disentitles him or her to the benefit of an order, or whose -- 3 of 32 -- 4 circumstances are such as make such refusal reasonable.” [19] The court is required to undertake a two stage process. [20] At the first stage it must be ascertained whether the disposition of the estate by the deceased was not such as to make adequate provision for the proper maintenance and support of the Applicant. This is in effect a jurisdictional question. This is to be determined as at the date of death (Coates v National Trustees Executors and Agency Co Limited (1956) 95 CLR 494). [21] In relation to this first stage in Singer v Berghouse (1994) 181 CLR 201 at 209-210 Mason CJ, Deane and McHugh JJ stated: “The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for 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.” [22] The assessment of the first stage of the process involves the exercise of value judgments (see Singer at 210.8). With reference to Goodman v Windeyer (1980) 144 CLR 490, it was said that: “[T]he words “adequate” and “proper” are always relative. There are no fixed standards and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.” [23] This is an objective question of fact to be determined by the judge at the date of the hearing (Singer 211.5). [24] In Re Fulop (1987) 8 NSWLR 679 (applied in Parker v Parker [2006] NSWSC 473 at [6]) it was said the relevant factors to be considered in respect of “proper” included: (a) the nature and quality of the relationship between the plaintiff and the deceased; (b) the character and conduct of the plaintiff; (c) the nature and extent of the plaintiff’s present and reasonably anticipated future needs; (d) the size and nature of the estate of the deceased; (e) the nature and relative strength of the claims to testamentary recognition by the deceased of those taking benefits under the will of the deceased; and (f) any contribution, financial or otherwise, direct or indirect, by the plaintiff to the property or welfare of the deceased. [25] In Vigolo v Bostin (2005) 221 CLR 191 at [114] Callinan and Heydon JJ said: “The use of the word ‘proper’ means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called ‘station in life’ of the parties and the -- 4 of 32 -- 5 expectations to which that has given rise, in other words reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future.” [26] On the issue of “need” Tobias JA in Collins v McGain [2003] NSWCA 190 at [42] noted that the question of needs must not be too narrowly focussed. The court must take into account present and future needs including the need to guard against unforeseen contingencies. [27] “Proper maintenance” is not limited to the bare sustenance of a claimant. “[It] 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” (see Collins v Mutton [2012] NSWSC 548 at [59]). [28] On the question of financial need, the concept is a relative one. It is not necessary for an Applicant to demonstrate that he is destitute (Collins v Mutton [2012] NSWSC 548 at [94]). [29] If the first question is answered affirmatively, then the court in exercising its discretion to make provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order (Coates v National Trustees Executors and Agency Co Limited (supra)). [30] In Singer v Berghouse (supra) at 210 it was said: “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 would be made in favour of the Applicant.” [31] There can be circumstances where even if the jurisdictional limb is satisfied the court could refuse to make an order e.g. in Ellis v Leeder (1951) 82 CLR 645 where there were no assets of the estate from which an order could reasonably be made. [32] It should be borne in mind that the court does not have jurisdiction to re-write the testator’s will to make provision which, according to whatever idiosyncratic notions of fairness which one or other of the parties bring to the application ought to have been made (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 per Dixon CJ). [33] It ought to be borne in mind: “… It is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator’s dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator’s bounty and give it to someone else.” (Grey v Harrison [1997] 2 VR 359 at 386 per Callaway JA) -- 5 of 32 -- 6 [34] In Dawson v Joyner [2011] QSC 385 at [66] McMeekin J was of the view it was unnecessary for an adult son to show some “special need or some special claim”. [35] I have regard to these principles in reaching my decision in this matter. [36] I also bear in mind that the onus is on the Applicant to establish his case on the balance of probabilities. Applicant’s submissions [37] The Applicant has made oral and written submissions (Exhibit 30). [38] It was submitted that there were five issues to be considered on whether the provision was adequate in this case namely: (a) DW’s financial position; (b) The size and nature of the estate; (c) The totality of the relationship between DW and his mother; (d) The relationship between the daughter and her mother; and (e) The daughter’s competing claim. [39] It is submitted the mother’s estate is not a large one by today’s standards. The figure agreed during the opening was $323,000. Taking into account costs, this leaves about $223,000. [40] As regards DW’s moral claim, it is submitted that DW should succeed merely based on the financial and health needs aspects of his claim. [41] However, it is submitted there are factors present in the case unique to it which strengthen his already good claim. [42] It is submitted the High Court in Vigolo v Bostin (2005) 221 CLR 191 confirmed that whilst family provision claims cannot be founded on moral duty alone, moral considerations may be relevant to the determination of such claims. [43] It was submitted there were three different moral claims of DW, namely: (a) DW’s personal injuries claim and his effectively being pushed out of the partnership by his father; (b) The taking of the proceeds of the judgment by his father for the furnishing of a house for his mother; and (c) The sexual abuse allegations. [44] It was ultimately submitted that DW should receive between $100,000 and $120,000. Respondent’s submissions [45] The Respondent provided both oral and written submissions (Exhibit 29). [46] It was submitted that the evidence of KW and EO was completely independent and the court would accept their evidence. It is submitted that RW has complied diligently with his duty as executor. It was submitted that the daughter was clearly emotional but did her best to answer questions she was able to answer. It was submitted that the daughter’s husband CW gave frank and straightforward evidence. -- 6 of 32 -- 7 It was submitted that JAW only came to the court to support her husband. It was submitted in light of the cross-examination, her affidavit should not be considered reliable. [47] It was submitted that DW was a liar and attempted to distance himself from Exhibit 9. It was submitted he was unimpressive. [48] With respect to the Applicant’s three moral claims, the Respondent denies these. [49] It is submitted that the daughter has a very strong moral claim. It is submitted that she was promised from the time of the acquisition of the first house in Hunter Street, she would receive the mother’s home and contents when she died. All of the witnesses supported this allegation. [50] It is submitted by the Respondent that the Applicant fails to meet the jurisdictional requirement, that he has not demonstrated a failure on the part of the deceased to make adequate provision for him. It is submitted that the Applicant is a 72 year old man who enjoys an income over and above the age pension and lives a comfortable existence. [51] The Respondent relies on Dawson v Joyner [2011] QSC 385 and Andrew v Andrew [2011] NSWSC 115. [52] It is submitted the Applicant has failed to discharge his onus in relation to the jurisdictional step. Summary of the issues [53] Having considered the above submissions it seems to me that a number of factual issues need to be considered as follows: (a) DW’s needs. (b) The daughter’s needs. (c) The relationship between DW and the deceased. (d) The relationship between the daughter and the deceased. (e) The moral claims raised by DW, namely the contribution by him from the personal injuries claim; the way in which he left the partnership and the sexual abuse allegations. Needs of the parties Applicant’s submissions [54] As to DW and JAW’s financial position, it was submitted they were both 72 years of age and both Centrelink pensioners. It was submitted that both JAW and DW had significant health issues. Their net assets are only $602,000 (including a modest home, their superannuation and not much else). Their total monthly income is $3,972.34 and their expenses $3,871.95. [55] Regarding the daughter’s circumstances, the daughter and CW are 74 and 75 years of age respectively. Together with their son and daughter in law they have combined assets of about $4,000,000. The debt to Rabo Bank is a trust debt. [56] Whilst their personal tax returns show minimal income, CW is in control of the family trust which has significant assets in its own right as well as an average -- 7 of 32 -- 8 income over the past three years of $300,000. There are unpaid beneficiary entitlements in the family trust as at 30 June 2012 of $152,690.07. It is conceded that the daughter has significant health issues. [57] It is submitted that the $300,000 average annual net income of the trust includes significant amounts for depreciation and many living expenses of CW and the daughter are paid by the trust including electricity, provision of a motor vehicle, insurance, interest, rates, repairs and maintenance to the house, telephone. The only personal expenses which can be identified are groceries and medical expenses. [58] It is submitted that compared to DW and JAW, the daughter and CW are well off from both an asset and income position. In addition, the daughter is the sole beneficiary of her father’s estate which is valued at about $115,000, but potentially up to $154,000. Respondent’s submissions [59] It was submitted that DW and his wife have significant superannuation reserves generating an income which are available for contingencies. It was submitted the Applicant on his own case, together with his wife, has unencumbered assets worth more than $600,000, nearly three times the size of the estate he claims from. It is submitted that the Applicant’s estimate of value of the assets was a conservative one in light of the understated value of various assets. [60] It is submitted that the monthly expenses of DW and his wife are well and truly met by their income. Bearing in mind that JAW’s affidavit deposes to generous allowances for gifts and miscellaneous. [61] It was submitted that the age pension should be included in the court’s consideration of the Applicant’s financial position (re Beard [1963] Qd. R. 90). It was submitted that the savings had doubled between 29 February 2012 and 28 February 2013. [62] It was submitted that the Applicant did not depose they have lived frugally and indeed the evidence showed they had taken overseas trips and the Applicant’s wife has been able to afford expensive jewellery. [63] In respect of their health needs it is submitted that on the financial evidence they are meeting all of their medical costs with money to spare. They have private health insurance. It is submitted the medical reports do not suggest that the cost of medical treatment is significant or they are facing increasing medical costs or there is need for medical contingency for which they need to plan. [64] It is further submitted that there is a lump sum buffer and the Applicant has had no compunction in raiding his superannuation to the extent of $50,000 to fund the case. [65] With respect to the daughter’s financial position, it is submitted that she has been full and frank regarding this. It is also submitted CW’s evidence was frank, sincere and helpful. [66] Whilst it is accepted that a number of expenses of a personal nature are in effect met by the trust, their life is at best a comfortable lifestyle with no frills. There is no doubt they own significant real estate but all of this is used in the horticultural business conducted by the family trust. They are “asset rich but cash poor”. -- 8 of 32 -- 9 [67] It is submitted that the daughter has significant health problems which she has had since 17. Evidence and findings DW’s needs [68] DW in his first affidavit sworn 28 October 2011 (Exhibit 1) states he was born on 30 September 1940. He is now 72 years old. He has been married to JAW for about 49 years. JAW was born on 3 October 1940 and is also 72 years old. [69] At that time DW received a Centrelink pension of $564.50 per fortnight and an MLC allocated pension of $400 per month. JAW received a Centrelink pension of $564.50 per fortnight and an AMP allocated pension of $941 per month. [70] They have three children, none of whom are financially dependent on them. [71] DW swears that in 1974 he was seriously injured when he was a passenger in a car accident (para 20). He suffered fractured ribs, a ruptured spleen resulting in him having to have a splenectomy, a torn liver, bruising to the pancreas and other internal injuries. He also injured his knee and suffers from post traumatic stress disorder. [72] At the time of the accident he was in the family partnership and was not able to return to full time employment. [73] Since the accident his health has been afflicted by depression, insomnia and anxiety, seizures and nephritis of a kidney which was diagnosed in the 1980s. He is required to take intermittent penicillin to avoid further episodes of nephritis. [74] In 1978 he was diagnosed with chondromalacia patellae linked to the accident. In 2009 he had a knee replacement because of osteoarthritis. [75] He was diagnosed with epilepsy in the 1980s and takes an anticonvulsant. [76] He says that his depression has inhibited him from making decisions at times and at times he is unable to function with effective cognition. [77] He also alleges his mental health was further affected when he found out in about 2002 that SW had sexually abused DW’s two daughters and two of his nieces from a very young age until they were in their early teens. [78] KW and DW faced SW about this and SW did not deny his actions. He showed no remorse. This has added to the strain on his mental health and on the family. I accept DW’s evidence as to the strain on his mental health. I will deal later with my findings as to the sexual abuse. [79] DW has taken Zoloft for depression. The depression and anxiety has increased over the past few months since the death of his mother. [80] JAW is a severe migraine sufferer and has primary biliary cirrhosis Hashimoto’s disease and is in remission for breast cancer. Her treatment is ongoing requiring daily medication and frequent medical reviews. [81] DW stated that he and JAW have the following assets: -- 9 of 32 -- 10 (a) Residence, Rundle Street, Rockhampton $400,000 (b) 2005 Jayco caravan $20,000 (c) 2003 Nissan Patrol car $15,000 (d) Crown electric forklift (currently not working) $5,000 (e) Masterkey Allocated Pension $120,000 (f) AMP Income Plan Annuity (JAW’s name only) $100,000 (g) 800 Telstra shares (400 each) $2,400 (h) Commonwealth Bank Account $1,440 (i) ANZ accounts $12,000 (j) Furniture and household goods $6,000 Total $681,840 [82] He said that the only liability is a Mastercard credit card on which they owe $1,400. [83] The total income per month is as follows: (a) DW $1,498.24 (b) JAW $1,997.62 Total $3,495.86 [84] His expenses total $3,616 per month, broken up as follows: (a) Rates $160.00 (b) Utility charges $35.00 (c) Electricity $65.00 (d) Gas $10.00 (e) Telephone $130.00 (f) Medical expenses including medication $120.00 (g) Fuel $150.00 (h) Food $870.00 (i) Car and caravan registration $55.00 (j) RACQ membership $6.00 (k) Motor vehicle maintenance, repairs and servicing etc $165.00 (l) House and car insurance $280.00 (m) Clothing $85.00 (n) Entertainment $285.00 (o) Private health insurance $275.00 (p) Gifts, Donations $125.00 (q) Hair grooming $100.00 (r) Miscellaneous expenses including roof repairs maintenance, whitegoods, household items fertiliser, gardening, holidays $700.00 Total $3,616.00 [85] In his second affidavit sworn 24 February 2012 (Exhibit 2), DW confirmed that his wife JAW at that time was 71 years of age. She has Hashimoto’s Disease and is in remission from having breast cancer twice. She suffers chronic migraines and Primary Biliary Cirrhosis diagnosed in 1993. She requires ongoing medical treatment and visits specialists in Brisbane on a regular basis and requires a variety of medication on a daily basis. [86] She had urgent life threatening surgery in December 1979 due to a blockage in the common bile duct which caused a severe abdominal infection of septicaemia. Her -- 10 of 32 -- 11 health has recently deteriorated even further. She constantly suffers from pain throughout her limbs which medical tests are still ongoing. She has been tested for motor neurone disease amongst other things. [87] Her freedom of movement is suffering greatly and she requires the use of Canadian crutches to assist getting around. She has also been diagnosed with osteoporosis. [88] Indeed I observed that she had trouble walking when she came to give evidence. [89] In a further affidavit sworn by DW on 17 June 2013 (Exhibit 3) he produced his full patient history from Dr Conaghan. [90] JAW has sworn an affidavit dated 14 June 2013 (Exhibit 4). In her affidavit she says that after DW’s accident in 1974 she went back to work as a registered nurse as they needed extra money to cover their medical expenses and costs of living. She stopped working for a period of 12 months from 1979 to 1980 when their youngest daughter was born. During that time she was diagnosed with a life threatening disorder which caused Peritonitis and resulted in the major operation. She was extremely unwell at this time and unable to work. She returned to work in April 1980 because DW and she were experiencing financial hardship and needed extra income to put food on their table, pay bills and support the family. In 1993 she was diagnosed with Auto Immune Liver Disease. Since the diagnosis she has had to travel to Brisbane at least once to twice a year to be hospitalised for tests. In 2003 she was diagnosed with breast cancer. She was required to spend seven weeks in Brisbane undergoing treatment. She is presently 72 years old. Her health has declined in recent years and DW is now her carer. She has severe osteoporosis and chronic liver and thyroid issues. She relies on a wheelie walker to get around and DW has to assist her with personal care. She requires home help weekly. Both DW and she are under the care of several medical specialists whom they see regularly. Her full patient and medication history certified by Dr Conaghan is marked as JAW1. [91] Her income is: (a) Centrelink pension – per fortnight $609.40 (b) AMP allocated pension - per month $941.52 DW’s income comprises: (a) Centrelink pension – per fortnight $609.40 (b) MLC allocated pension – per month $478.34 (c) Carer’s pension – per fortnight $115.40 [92] The assets she deposes to are fairly much the same as those to which DW refers to. [93] In April 2013 they sold their caravan for $37,600. This money was used for: (a) $6,000 to their daughter Julianne for legal fees for the court action; (b) $30,000 for legal fees for this trial; (c) $1,600 was deposited into the Commonwealth bank account. [94] They sold the caravan because they were unable to travel anymore because of ill health. -- 11 of 32 -- 12 [95] DW has also withdrawn $10,000 from his Masterkey pension to fund legal costs for the trial. They owe $3,800 on their Mastercard and $7,000 to their daughter for legal fees. [96] The expenses are fairly much the same as those DW deposes to. [97] DW was cross-examined as to his financial position. [98] I conclude that he did not consciously try and exaggerate his financial position. [99] It is true there was a difference between the sum of $20,000 attributed to the Jayco caravan as compared to the sale proceeds of $37,000 but the $20,000 was a trade in price (T1-44- 1-47). [100] There was also cross-examination of the difference between furniture insurance of $100,000 and a value of $6,000. I do not consider this to be unusual. The reality is that the replacement cost of furniture (including floor coverings and white goods) would be far in excess of what one would be able to sell furniture for (T1-47- 1-48). [101] There was cross-examination about the value he attributed to his property (T2-8). In his first affidavit (para 28) it was listed as $400,000. [102] This is to be contrasted with an earlier document Exhibit 10 where he said it was between $400,000 and $450,000. I believe that this can readily be attributed to the usual variation in property prices. I note by way of example that Caroline Street was valued in a valuation (Exhibit2) at $410,000 but it sold for about $380,000. [103] DW was further cross-examined about some overseas holidays he and JAW had taken. [104] This arose because in RW’s first affidavit at paras 31 and 61 it was alleged that DW’s lifestyle involved a lot of travel (Exhibit 15). [105] DW in his second affidavit (Exhibit 2 - para 41(g)) stated that he considered the travel undertaken by his wife and he since 2002 to be relatively modest for a retired couple in their 70’s. [106] In cross-examination (T1-52) DW conceded having gone to Fiji, Vietnam, Europe, Canada and Alaska and around Australia twice in a caravan. There is no doubt that DW has travelled overseas with his wife but it is not suggested any of those trips were in any way extravagant. I note that DW in Exhibit 2 para 38 states that the travel he has undertaken is similar to RW, the mother and SW. [107] DW was also cross examined about the value of his wife’s jewellery (see T 1-48). Apparently one ring is insured for $13,500. But there is no valuation evidence of its actual market value. DW says that almost all of his wife’s jewellery was inherited (Exhibit 2 para 41 (h)). [108] My conclusion then with respect to DW’s financial position is that: (a) His major asset is the family home of uncertain value; (b) He qualifies for receipt of the old age pension and carer’s pension; (c) Both he and JAW in particular have significant health difficulties; (d) Their superannuation is modest; (e) He has no other significant assets. -- 12 of 32 -- 13 [109] DW and JAW’s financial statements are in Volume 2 of Exhibit 5. The increase in the bank balance from $4267.26 to $9433.38 pointed out by the Respondent appears to be largely as a result of the deposit from MLC of $10,000 on 14 November 2012 (see page 61). The evidence is he used MLC money for legal expenses. The daughter’s needs [110] As noted earlier in this judgment the daughter is due to receive the proceeds of both the mother’s estate and SW’s estate, a total of approximately $363,000 (taking out the legal costs of the present dispute from the mother’s estate). [111] DW at para 72 of his first affidavit (Exhibit 1) alleges that the daughter and her husband own a farm. He alleges that he has been informed by the daughter’s husband (CW) that the value is at least $10 million. They claim to be the biggest sweet potato farmer growers in Queensland. [112] The daughter has provided two affidavits. The first is sworn 12 January 2012 (Exhibit 18), and the second 27 May 2013 (Exhibit 19). In addition CW gave oral evidence in the trial. [113] In her first affidavit the daughter says that she left home in 1958 when she married CW. Throughout almost all of their married life she and CW have almost always continuously operated their farm at Rossmoya which they purchased in 1959. [114] She says (para 6) that she and CW together with their son and his wife, carry on a farming business at Rossmoya near Rockhampton growing crops. Their total land area is 210.645 hectares. Some of the lots are owned with their son and his wife. [115] A summary of their assets is as follows: (a) Land and improvements at Rossmoya $4,005,642.00 (b) The daughter’s superannuation (as at 30 June 2011) $975.31 (c) Joint bank account of CW and the daughter $10,086.00 (d) The daughter’s bank account $25,141.00 (e) The daughter’s term deposit $25,000.00 (f) Peanut Company of Australia shares – 1,800 $7,200.00 Total $4,074,044.31 Less mortgage to Rabo Bank $1,200,000.00 Net assets of CW, the daughter, their son & his wife $2,874,044.31 [116] The daughter deposes that the farming operation is conducted through the family trust. [117] The daughter deposes that her and her husband’s taxable income for each financial year is as follows: The daughter (a) 2004 $173 (b) 2005 $51 (c) 2006 $64 (d) 2007 $707 (e) 2008 Nil (f) 2009 $578 (g) 2010 Nil -- 13 of 32 -- 14 Total $1,573 CW (a) 2004 $465 (b) 2005 $51 (c) 2006 $17,459 (d) 2007 $19,996 (e) 2008 $18,135 (f) 2009 $578 (g) 2010 Nil Total $56,684 [118] In her second affidavit dated 24 May 2013 (Exhibit 19) the daughter stated that she was still waiting for her 2011/2012 income tax return to be finalised. To the best of her knowledge her income for that year was $13,291 and CW’s $10,821 (para 9). [119] She said that the family continued to own the farming property at Rossmoya (para 10). The property is owned as follows: (a) CW and the daughter – 172.602 hectares (b) CW and the daughter; their son and his wife 64.087 hectares (c) Their Son and his wife – 149.916 hectares [120] She also swears that her bank accounts have reduced in value by $39,872. She says that $50,000 was given to her by SW to enable her to supply him with consumables and to assist in meeting his financial commitments but the balance of $39,872 was transferred by her to RW at SW’s request. This forms part of SW’s estate. [121] The daughter also exhibits a valuation from Heron Todd White dated 8 March 2009 concerning the Rossmoya property. This valuation was to assess the market value of the farm’s aggregation located at Rossmoya. The aggregation is 392.6 hectares in a title. It was noted, as at that time, that with the integration of grass seed production and the crop rotation program gross income was projected to be over $2.5 million in that financial year. Water supply and reticulation was very good. There were two irrigation licences and other storage facilities. [122] The total value was assessed at $3.8 million. [123] The daughter gave evidence in this trial. I found her evidence to be unhelpful as she claimed she could not answer any questions about the finances, despite that which she swore to in the affidavits. [124] CW was called to give evidence. He gave evidence that the farming business was operated through the family trust (T3-57.22). CW had a superannuation policy of not much moment (T3-58 and Exhibit 27). [125] He said that in the 2010/2011 financial year the trust profits before tax were $664,329.20 (T3-59.41). [126] He alleged that not much of this profit actually went to he and his wife. The money was used to operate the business (T3-60.17). -- 14 of 32 -- 15 [127] The Rabo bank debt is a line of credit. He alleges that he and his wife had not taken a wage in the last four to five years (T3-61.5). [128] They have had some overseas holidays to New Zealand and the daughter does not own any expensive jewellery. They do not own expensive clothing or engage in expensive hobbies. [129] In cross-examination CW conceded they had been able to afford to purchase other properties over the years (T3-68). [130] He conceded in cross-examination that in the 2009/2010 financial year the trust made a profit of $209,000 (T3-69.41). The profit was $664,000 in the 2010/2011 financial year with the daughter and CW’s income about $36,000 each (T3-70.11). In the 2011/2012 financial year the net profit was only about $44,000 with the daughter and CW each having $20,000 of taxable income (T3-70.20). [131] He conceded there had been variations in income (T3-70.45). [132] Many of the household expenses and vehicle expenses were paid through the trust (T3-72). [133] Groceries and such expenses were paid for personally (T3-74). [134] They have invested in a new potato washing plant in the last three years for about $250,000 (T3-75.45). [135] The financial records for the trust have been tendered. As have some other financial documents (see pages 1-104 Exhibit 5 Volume 2). [136] The daughter’s tax return for 2010/2011 shows taxable income of about $36,501. For 2011/2012 the estimate of taxable income is $25,783. [137] The trust documents disclose the following: Gross profit from trading (a) 07/08 $503,213.43 (b) 08/09 $878,640.78 (c) 09/10 $1,261,740.54 (d) 10/11 $1,971,448.21 (e) 11/12 $1,465,842.15 [138] Profit/Losses before income tax were as follows: (a) 07/08 -$ 404,264.93 (b) 08/09 -$84,046.25 (c) 09/10 +$209,342.63 (d) 10/11 +$664,329.20 (e) 11/12 +$44,381.10 [139] Beneficiary distribution was $233,452.83 in 2010/2011 and $44,381.10 in 2011/2012. [140] To my mind these records tend to indicate that the business has been travelling fairly well in the last few years although with the variations CW referred to in his evidence. -- 15 of 32 -- 16 [141] I consider on the evidence that the daughter is in a better financial position that DW. [142] In her first affidavit the daughter (Exhibit 18) swears that in her early 20’s she was diagnosed with Lichen Sclerosus, a skin problem. She has had to have regular biopsies over 36 years. She has been diagnosed with two cancers which have resulted in radical vulvectomy which was a very traumatic operation for her. It resulted in lymphodemia developing in both legs which is a continuing condition. She continues with three monthly check ups and biopsies from the RBH Oncology Department. She has also been diagnosed with depression which requires ongoing treatment and suffers from osteoporosis and arthritis. Since 2006 she suffered from atrial fibrillation which requires ongoing treatments to prevent the risk of a stroke. She is under the care of a specialist for this condition. [143] In her second affidavit dated 27 May 2013 (Exhibit 19) she says that the Lichen Sclerosus causes pain, constant itching, stinging urine, disturbed sleep and a ruined sex life and severe embarrassment. It has been a private life long affliction. [144] She has also had lumps removed from her breasts causing a cancer scare and has suffered from a heart condition since 2006 and to correct this has had multiple cardioversions and two failed catheter ablations (January and May 2012). In November 2012 she had a pacemaker inserted after an emergency admission to the hospital in which her heart stopped twice. In November 2012 while still suffering from her heart condition a skin cancer on her nose was removed. There were complications because she was taking Warfarin at this stage. She has suffered from what has been treated for depression for 15 years. [145] She has had osteoporosis for the previous fracture of the thoracic spine and severe painful osteoarthritis of the hands. There are other conditions she refers to at paras 5 and 6 and 7 of her second affidavit. CW is now 76 and suffers Rheumatoid Arthritis for which he takes steroids (para 8). [146] There is no doubt the daughter has the health problems to which she has deposed. [147] I take these matters into account in reaching my decision. I have also had regard to exhibit 25. The relationship between the parties and the deceased Applicant’s submissions [148] As to the relationship between DW and the deceased and the daughter and the deceased, it was submitted this is not a case, as family provision cases often are, where one party had a good relationship with the deceased and the other did not. It is submitted both DW and the daughter had an equally good relationship with their mother. [149] With respect to the promise to the daughter by her parents that she would have the house, it is submitted the highest this can be put as far as family provision law is concerned, is that there was a competing moral claim of the daughter which DW knew about. Respondent’s submissions -- 16 of 32 -- 17 [150] The Applicant’s position did not seem to be greatly disputed in the Respondent’s submissions except a far greater emphasis was placed on the promise to the daughter. Evidence and findings [151] DW in his first affidavit (Exhibit 1) says that throughout his life he always had a great respect for his mother. He had a close relationship with her most of the time and they would talk or see each other a few times every week. [152] He protected her from knowing what SW did (vis-à-vis the sexual abuse) in fear of this destroying her. He swears that many years ago after he had got out of the family partnership (to which issue I will return later), his mother and he were distanced for a while. [153] He says that he was blackmailed into handing over his compensation money so that his mother and father could purchase a house. His mother said they would pay it back but they never did. [154] I accept DW’s evidence that his mother said this. [155] JAW convinced him to make amends with her some time later and they did reconcile. He says that over the years he and his family members helped SW and the mother out in many ways. On a regular basis he maintained their lawn, gardens and fruit trees and did repairs to their roof, bathroom and carried out other maintenance. [156] DW and his son have always serviced their car. SW had a car accident about three to four years before 2011. He was not insured and there was major damage to the car. DW and his son repaired the damage to the car. SW said DW’s son could have it when he had no further use of it but it was given to the daughter’s daughter. DW has also transported his parents to appointments and taken them shopping for groceries and for medication. [157] When the mother broke her leg, JAW would go to the mother’s on weekends to bathe her and care for her, she would do the mother’s washing or bring it home and help her with meals and chores. Once JAW and DW moved to Rockhampton to live, they went to his mum’s at least two to three times a week to do things for them. [158] DW’s daughter – a nurse also helped SW and the mother out on many occasions. When the mother was in hospital aged 90, DW’s daughter did a lot of organising of her care and convinced the doctors to let her home. [159] I accept DW and his family gave the assistance to the mother and SW to which he has deposed. [160] The daughter in her first affidavit (Exhibit 18) says that all of the children had made contributions to the care and wellbeing of the parents. She alleges she made a greater contribution as she was the only daughter and she and the daughter were close (para 14). [161] In addition to farm work the daughter has provided assistance and support to both of her parents. This was particularly over the last three to four years of the mother’s -- 17 of 32 -- 18 life including grocery shopping, other shopping, housework, gardening and driving her to appointments (para 18). [162] The daughter also states (para 5) that over the years SW and the mother told her that they had left the Rockhampton house to her in the will. She was happy with this arrangement. She had never been made part of the partnership business which made her feel left out. The mother told her that she had spoken to the three brothers about this and they all agreed on this. [163] RW in his first affidavit (Exhibit 15) confirms that all family members have assisted the parents over the years (para 35). He alleges that he had been told by DW’s son that he was paid for the work done to the car and was never promised the car (para 35). [164] He agrees that DW and JAW assisted SW and the mother but they were not the only ones (para 37). [165] He says that DW and JAW did not see mum in the last nine months of her life and they had to fly back from Sydney for the funeral (para 37). [166] He agrees that DW’s daughter provided assistance to the parents (para 38) but she was given a caravan. [167] DW in his second affidavit denies that the contents of the will were ever discussed with him (para 4). He further says that he was the closest to his parents and provided more assistance to them by reason of this (paras 5-8). [168] KW in his affidavit says that he was told by both parents on several occasions over the years that the Caroline Street house was to go to the daughter when they passed away as the three sons had received shares in the family business (para 6). [169] Having considered all of the evidence it seems to me likely that all family members have provided assistance to the mother and SW. [170] It is probably likely that aside from the times that DW was travelling on holidays because of his proximity to the mother’s house he and his family provided slightly more assistance to the mother. [171] I also consider that whilst it is likely the mother told members of the family that the daughter would get the house, the mother also told DW he would be repaid for his contributions which will be discussed shortly. Moral claims by DW [172] A controversial aspect of the trial relates to alleged financial contributions by DW. [173] I should indicate having heard all of the evidence I have come to the view that SW was a strong willed individual who often was able to get his own way. Personal Injuries action Applicant’s submissions -- 18 of 32 -- 19 [174] It was submitted the partnership had to employ casual labour and it was uncontroversial that $8,500 were awarded for this. The full amount of $8,500 went into the partnership. [175] It was submitted there was no admissible evidence that the sum of $14,000 odd was banked into the partnership accounts from DW’s claim. EO’s notation of “DW” next to the figure is based on hearsay. [176] Pat, the bookkeeper, was not called and the court is entitled to draw an inference her evidence could not have assisted the Respondent’s case. [177] DW’s evidence at the trial is that he only received one cheque and he gave the entire proceeds to his father so a house could be bought. [178] With respect to the cross-examination on Exhibit 9, it was submitted that DW’s memory was not perfect given the events occurred over 30 years ago. [179] It was submitted the evidence was overwhelming that SW was a domineering man and pretty much everyone did as he said. It was submitted that if there were two cheques, DW was left with $8,000 instead of nothing. He had significant health issues and ongoing medical expenses. It does not take away from the fact that a significant part of the purchase price of Stickley Street was funded by DW’s personal injuries monies. At the very least the purchase of that was out of partnership funds, of which DW was a one third owner. [180] It is not possible to know for certain that the $32,000 paid to the Grant and Simpson account was for a house at Stickley Street but there were no other houses purchased and the inference is clear. Respondent’s submissions [181] With respect to the personal injuries claim, it is submitted that the $8,500 in the ledger book (Exhibit 21) was the amount for past economic loss. It was submitted that future economic loss was also assessed based on costs of the partnership. The final components of the judgment were a sum of $9,000 for the Applicant’s pain and suffering and $754.98 for out of pocket expenses. In other words the only parts of the judgment assessed as personal to the plaintiff totalled $9,754.88. [182] It is submitted that the amounts of $8,500 and $14,913.15 reflected in the books were clearly partnership losses. It was also submitted that any suggestion monies relating to the personal injuries claim were used to purchase Stickley Street is not correct because the bulk of the purchase price was paid to Grant and Simpson on 31 May 1979, prior to either of the cheques being deposited. Evidence and fact findings [183] The decision of Demack J is Exhibit 6. [184] The following amounts were assessed by His Honour: (a) $8500 for the cost of past labour. -- 19 of 32 -- 20 (b) $27,500 for future economic loss based on the cost of installation of a sprinkler system (which never eventuated) or by reference to the cost of employing a labourer. (c) $9000 for pain suffering and loss of amenities (d) $754.88 special damages. [185] On appeal the award was reduced to $35,000 (Exhibit 7). [186] In his first affidavit DW says (Exhibit 1 para 35) that as a result of the motor vehicle accident he was awarded $35,000 damages and that all of the damages were used by his mother to acquire a property at Stickley Street, Rockhampton, on 17 May 1979. [187] This house was sold for $65,000 in July 1986. His mother purchased the property at Caroline Street, Rockhampton, in September 1985 for $97,500. [188] This was the major asset of the estate which has now been sold. [189] RW, in his first affidavit (Exhibit 15), said that after DW’s motor vehicle accident in 1974 they hired extra labour. The extra labour costs were claimed as part of DW’s claim for personal injuries as they were losses of their partnership. [190] He says that when DW’s claim was resolved, the amount of $23,413.15 was reimbursed to the partnership (para 29). Exhibit RNW4 is an extract of the partnership accounts showing this payment. [191] RW says that it was agreed that it was fair the partnership should be repaid for this expenditure (para 34). [192] In para 26 of DW’s second affidavit (Exhibit 2) he says that he has no knowledge of the payment of the sum of $23,413.15. He says that his cheque for the award of damages was handed to his father in the presence of his wife. This was for $35,000. He says it was from those proceeds that Stickley Street was purchased for his mother. [193] JAW in her affidavit (Exhibit 4 para 21) swears that she was present when DW handed the cheque in the amount of $35,000 to his father. SW asked for all paperwork in relation to the cheque. The cheque was endorsed in SW’s favour. [194] DW was cross-examined on this. It was accepted by him that $8,500 was the assessment for past economic loss (1-57.37) and there was an amount awarded of $9,000 for pain and suffering (1-57.42). $754.98 was for out of pocket expenses (1- 58.5), the balance being for future economic loss. [195] DW agreed in cross-examination that he contributed to Exhibit 9. This was an enclosure to a letter sent by the Applicant’s solicitors to the Respondent prior to commencement of the proceedings. [196] In Exhibit 9 it is stated that a first cheque came through, and when the next cheque came through a couple of months later Dad took $16,000 to pay for extra wages on the farm, leaving DW $8,000 to pay for future medical costs (2-5.30). -- 20 of 32 -- 21 [197] The ledger of the partnership has been tendered as Exhibit 21. Page 36 discloses that $8,500 was a deposit into the account entitled “Claim for casual labour”. In pencil there is a notation of “DW claims” next to that figure. [198] There is also a figure of $14,913.15 in the sundry column with a question mark next to it, on the right hand side “DW”. [199] The total of those two sums, of course, is $23,413.15. [200] I also note that JAW in her evidence conceded that there were two cheques (2-35.5) although she denied that $8,000 was kept by DW (2-34.22). [201] Unfortunately no evidence was led as to how much was expended by way of legal costs, so it is difficult to know the exact amount DW received from the action. [202] On balance I conclude that DW did pay to the partnership the sum of $23,413.15. [203] I do not accept DW’s oral evidence that $35,000 in one cheque was handed over. [204] I consider DW’s recollection to be faulty in this regard likely due to the effluxion of time and his medical conditions. [205] Whilst DW most likely kept some money for future medical expenses, it is clear the “lion’s share” of the award was paid to the business. [206] Whilst the business may well have expended $8,500 on casual wages because of DW’s incapacity, DW only remained in the partnership until September 1979. [207] Therefore, he lost most of his benefit in the $14,513 amount assuming this was for future wages. In those circumstances I am satisfied that DW did make a capital contribution to the partnership. [208] Even if the money did not go directly towards the purchase of Stickley Street it seems clear on the evidence that there was a mixing of partnership funds – despite there being two partnerships. RW gave evidence at T2-61.27 that while the two partnerships engaged in different activities they “were pretty well involved together as well.” At 2-90 RW conceded that there were transfers between the businesses. [209] I also note from Exhibit 21 that SW also appeared to receive monies from the partnership even though he was not a partner (see private column for SW after page 22). [210] There is an amount of $32,000 for a “house” (see p 34 of Exhibit 21). [211] The books are incomplete but one can see from Exhibit 21 that between September 1978 and June 1980 SW received some $44,810.30 including the $32,000. This money would have also been for the mother’s benefit. [212] The books do not assist with the ultimate destination of the $130,000 paid by DW (which I will discuss shortly). Exhibit 21 shows it was invested and interest was earned from which SW and I infer the mother benefitted. -- 21 of 32 -- 22 [213] I consider that the contribution by DW of his monies enabled SW and the mother to live either directly or indirectly. [214] Even if the sale proceeds from Stickley Street were not used to purchase the house at Caroline Street, the contribution by DW to the partnership from the personal injury monies indirectly benefitted both SW and the mother. The mother would have realised this. This is why she told DW she would pay him back. [215] There is no evidence that either of the other brothers made such a contribution towards the partnership. The three of them all contributed $1000 each towards the purchase of Hunter Street but there is no evidence of any other cash contributions like that made by DW. [216] As I have already found, SW was a very strong-minded individual. He was not to be trifled with. I find that he prevailed upon DW to make these contributions. I accept DW’s and JAW’s evidence in this regard. Partnership issues Applicant’s submissions [217] With respect to the property LB, it was submitted that it was worth approximately $175,120 at the time of the partnership dissolution and DW was required to pay $130,000 for it. The sale of lands took place over a 24 year period and there were significant borrowings required to be serviced. Significant capital sums were spent on the property. [218] In the end the court must consider the Applicant’s present circumstances. [219] It was submitted that when DW was 34 years of age he was involved in a serious motor vehicle accident. As a result of the injuries he sustained he could no longer do the same amount of work on the partnership as he was able to pre-accident. DW’s evidence is that he was effectively forced out of the partnership by his father. [220] It was submitted that when considering the evidence as a whole, the two different partnerships were really a convenience. The evidence is clear that all parties treated the entire assets and operations of the partnerships as one entity. Everyone had a quarter share. KW was clear about this. It was submitted that the ledger, Exhibit 21, showed many entries for the various partnerships. [221] It was submitted that SW did whatever SW wanted to do and everyone acquiesced and the books were made to fit the circumstances. Respondent’s submissions [222] With respect to contribution to the estate, it is submitted that all three boys worked hard on the partnership. The father gave them the opportunity to become land owners at a very young age. It is submitted that none of them had to inject capital into the partnership. It is submitted the uncontested evidence is that SW and the mother lived a frugal but comfortable lifestyle with no excesses. [223] With respect to the Applicant’s complaint as to his exit from the partnership, it is submitted that there was insufficient evidence to accurately undertake an assessment of the fairness of the transaction at the time. -- 22 of 32 -- 23 [224] What is clear is the Applicant was able to sell 7 percent of the land area he acquired 12 months after he acquired for more than half of what he paid. It was submitted that in less than two and a half years he had sold a total of 21 percent of the land area for one and a half times what he paid. He went on to recover nearly $1.3 million, not counting two large blocks and two small blocks he gifted to his children. It is submitted the evidence from the wife (Exhibit 14) concerning expenditure is useless and even if the cost is deducted from $1.3 million, there is a healthy capital profit. [225] It is submitted that a major problem for the Applicant is there is simply no reliable evidence to suggest that contributions had anything at all to do with the acquisition of Caroline Street. [226] KW gave evidence that Caroline Street was acquired with monies that KW paid for their father’s share in RV. Evidence and fact findings [227] In his first affidavit (Exhibit 1) DW says that SW and his brothers and he were in partnerships from an early age. The partnerships acquired land and developed the land for farming and/or grazing purposes (para 42). [228] In 1960 KW and DW put in for a ballot of 169 acres of cane farming land in Innisfail and were successful in that ballot. In 1963 KW and DW transferred 74 of those acres to SW for no payment. [229] NT at Alton Downs was bought in 1960 for $24,000. It comprised 1,200 acres. It was bought by the partnership. When he was nineteen DW was sent to that property by himself for nine months to prepare as much land as possible for grain farming. SW, the mother and RW came nine months later. DW worked at NT from 1964 to 1971 building an intensive piggery. [230] In early 1971 70 hectares of NT which were unused were sold, and the sale proceeds were used to buy 300 hectares of land north of Yeppoon. This was bought so it could be cleared and put under improved pasture to fatten cattle. [231] In June 1971 DW moved to the Yeppoon property and cleared 200 hectares and oversaw the construction of a house for him, JAW and his children. The land was improved and was fenced. DW was shocked when he was subsequently told that his parents wanted to live in the new house on the Yeppoon property. [232] The cane farm in Innisfail was sold in 1972. The sale proceeds and other monies plus some borrowings were used to purchase LB at Alton Downs in 1972. It comprised 1,141 acres. The property was to be developed for irrigated crops and pasture for cattle. The house was a wreck and badly in need of repairs. JAW and DW were required to live there. [233] In 1974 RV at St Lawrence was purchased by SW & Sons, and KW moved into RV. [234] This was funded by the sale of 200 hectares of NT in 1973. RV consisted of 8,993 acres with 650 head of cattle. -- 23 of 32 -- 24 [235] After DW’s accident in October 1974 he was unable to move the irrigation lines and a labourer was hired to help out at NT and LB due to his incapacity (para 59). [236] DW gradually increased his time at work, and about 12 to 18 months after the accident, he was back at about 80% capacity (para 59). At this stage DW was told by SW that if he did not work, he would not be paid, as he was not pulling his weight. [237] DW, as a result, said that he wanted to pull out of the partnership. He liked NT, as there was no heavy labour and he could have managed it, but he was told there was no chance of getting that because it was too profitable and was told to take LB. SW wanted $100,000 and DW was told that he could take the deal or leave it (para 60). [238] In the end the evidence reveals that DW paid $130,000 for LB and had to give up his quarter share in RV (para 61). [239] The Yeppoon farm was sold in 1979. DW received none of the sale proceeds; they went to pay off debts of both partnerships (para 62). [240] Additionally the arrangement was that DW had to transfer his quarter share in NT. [241] DW believes that he did not receive his fair share in the value of NT and RV and the livestock, plant and equipment on them, and believes that he overpaid for LB. [242] RW, in his first affidavit (Exhibit 15), says that SW and the mother initially lived in the Babinda region in North Queensland where SW worked as a cane cutter. [243] In about 1945 SW and his three brothers-in-law purchased a cane farm north of Babinda (para 9). This was sold and in 1947 SW and GG bought a cane farm at Cowley near Innisfail. [244] In 1956 SW bought out the share of GG in the name of he, KW, DW and RW. The partnership formed was called “SW & Sons”. [245] He confirms that in 1957 or 1958 169 acres of cane farming land came up for ballot at Sandy Point near Innisfail and SW put KW and DW’s name on the ballot, who were successful (para 12). [246] In 1961 the cane farm at Cowley was sold. SW purchased NT in April 1960. SW had a one-quarter share, and each of the sons had a one-quarter share. [247] Sandy Point was converted into freehold in about 1962. [248] In 1968 SW and the mother located permanently to Rockhampton and purchased Hunter Street. The three sons each gave the mother $1,000 for the property and SW gave her $3,000. This was to reduce gift duty. The property was purchased in the mother’s sole name. [249] At that stage it was agreed the property was to be left to the daughter as she received nothing while the three brothers had been made partners in the farm (para 18). -- 24 of 32 -- 25 [250] In early 1969 the property known as “W” near Yeppoon was purchased by the SW & Sons partnership using monies received from the profit of cane farms and personal funds. [251] RW alleges that SW said that DW was not doing enough on the property, which resulted in SW and the mother moving to W and DW to Hunter Street to help in the piggery (para 21). [252] He says in 1970 DW and JAW moved to Brisbane for personal reasons. [253] In 1972 the cane farm at Sandy Pocket was sold. The funds were used to buy LB in the name of the three sons, KW, DW and RW - in the partnership known as W Brothers. RW says that it was then decided that as KW had school aged children it would be best for him to move into the Hunter Street property and DW went to live at LB (para 25). [254] He says that NT came into the W Brothers partnership (as distinct from SW & Sons) and SW stopped receiving income from the piggery and lived off payments from the second mortgage he had granted for the sale of the Sandy Pocket property in North Queensland (para 27). [255] In 1974 about 200 hectares at NT was sold for about $130,000 of which funds were applied to purchase RV, which cost about $213,000 walk in, walk out, with approximately 500 head of mixed cattle and some machinery. This property was owned by SW & Sons. KW purchased this property in 1981. [256] W was sold in 1979. After payout of the Commonwealth Bank and the original vendor, not a lot was left, the balance going to the SW & Sons account (para 30). [257] RW alleges that DW left the partnership by mutual agreement in 1979. [258] RNW5 is a true copy of the agreement for sale. The end result of the agreement was that DW pay the remaining partners the sum of $130,000 and in exchange for this he received the LB property in its entirety. [259] He says that DW started selling off blocks at LB and used funds received to purchase expensive grain-growing machinery and baling equipment. He ran a red Brahman stud at LB and a mango plantation. Land was sold to build himself and JAW an expensive house, fund his political aspirations, fund expensive motor vehicles and top of the range caravans. [260] He took considerable overseas travel (para 31). DW also bought rental units and a hairdressing salon. [261] RNW7 is a bundle of transfer documents, and sales evidence shows that he received a total of $1.29 million for some of the land at LB (para 31). [262] The piggery at NT was sold in about 1981 (para 32) for $130,000. [263] RW says that the house at Caroline Street Rockhampton was bought in mid 1980. He says that monies paid by KW paid for Caroline Street (para 33). [264] RW alleges that DW wanted to leave the partnership of his own volition (para 51.) -- 25 of 32 -- 26 [265] At para 56 RW sets out what he considers to have been the valuations for NT, LB and RV. [266] No valuation for LB has been produced although one for RV has. I note that the valuation for RV assesses a value of $177,585. This is the same amount noted in pencil on Exhibit 22. I find that the other pencil notations of $175,120 for LB and $131,385 for NT are the likely assessed values as at 1979. [267] I do not accept RW’s evidence as to his valuation assertions. [268] I note that during the trial the NT valuation was produced (Exhibit 8). There is no explanation as to why this was not in the material. I deal further with the issue of “missing” books at [299]. The NT valuation was $131,385. [269] In his second affidavit (Exhibit 2) DW denies some of the allegations made by RW. [270] For example, he denies the reason SW and the mother moved to the Yeppoon property was because he had not been doing enough work on the property. He says he worked tirelessly almost every day in all conditions, to the extent that in January and February 1972 he was admitted to the Rockhampton Hospital suffering pneumonia and pleurisy (para 17). [271] With respect to the suggestion that monies paid to the partnership reflected the costs to the partnership. He says that irrigation was never completed at LB, so anticipated labour costs were not actually incurred (para 28(a)), and he went back to work within about five or six months of his accident, notwithstanding he was told by the doctor not to recommence physical work until at least 18 months following the accident (para 28(b)). [272] He denies he ever had a registered red Brahman stud at LB and denies he did not want to be involved with NT (paras 29 and 30). He says that he was told by his father that he did not deserve to be in the partnership as he could not work at 100% capacity. [273] In relation to the calculation of the value of LB by RW, DW alleges his calculation is misleading. To the best of DW’s knowledge, no-one is making a living on the blocks and all of the owners are working in town. [274] Further, at least 50% of LB as a whole is flood-prone, has been underwater at least three times in the last century and has been cut off from Rockhampton at least six or seven times since 1960 (para 37). [275] In para 38 DW says that the valuer of RV was instructed to value the property as conservatively as possible. They purchased RV for twice as much as LB. He says that RW has understated the value of NT. [276] As regards the sale of land at LB, DW says: (a) His home was built at a minimum cost (b) The machinery and equipment was no different to NT’s (c) He did buy a block of units which were sold after 3-4 years for a profit. He could not continue to work these because of depression. (d) They sold a hairdressing business after 8 years for a profit because of JAW’s declining health. -- 26 of 32 -- 27 (e) Much of this money was lost in the GFC after it was placed in a declining super fund. (f) Their caravans have always been modest. (g) He agrees that he sought National Party preselection once. He also served as a councillor for one term and on the Port Alma Port Authority for little remuneration. [277] JAW, in her affidavit, says that between 1974 and 1979 she witnessed SW continuously putting DW down due to his inability to work (para 26). [278] She was present when SW said “I don’t know what I’m going to do with you, no work, no pay.” [279] She witnessed DW’s declining mental health as a result of this (para 27). [280] DW and JAW had lengthy discussions about his desire to leave the family partnership. SW made several offers for the share and they agreed to each offer, but each time he would change his mind and come up with a new offer. His final offer was for DW to purchase LB (para 28). [281] The final offer involved DW having to make a payment of $130,000 for the whole of LB and he would give up his interest at NT and RV for what was in effect $17,000 (para 30). [282] To fund the purchase, they had to borrow $150,000 from the Commonwealth Bank. $130,000 was to make a cash payment for LB and $20,000 was used as a working account for the farm (para 31). [283] They also received 30 head of cattle, a second-hand trailer or a truck. [284] The assets of the partnership at that time comprised three properties – RV, NT and LB – plus livestock, plant equipment and crops. [285] The valuation for RV at the relevant time was noted in pencil in the transaction - $177,505, $131,385 was noted against the NT land, and $175,120 against the LB land. [286] It seems to me on the material, and I accept, that SW was a strong willed person and would not have had much time for DW not being able to work to full capacity. [287] I accept JAW’s evidence that DW was “put down” by SW. [288] It seems to me in the circumstances that DW paid more than his fair share when he bought LB. [289] I accept that he probably paid at least $20-30,000 more than it was actually worth, and he also forwent any interest which he had in RV and in NT. [290] I note that KW said he considered the deal to be a fair one when he gave evidence. But I considered that statement to have been reluctantly made by him. I gained the impression he wanted nothing to do with these proceedings. -- 27 of 32 -- 28 [291] It is true that over the years DW sold off LB. He was cross-examined about that (see TI-37-1-39). The total sale price was $1,292,575. [292] In re-examination DW gave evidence there were quite a number of expenses associated with the sale of the blocks including council fees, changing the shape of the blocks, survey fees, road construction and fencing fees, dams, underground mains, etc. (T2-15). [293] He also suffered losses in operating the business of the property (T2-16.15). [294] He also paid off a debt that was owing on LB (T2-17.25). [295] Exhibit 12 is a document listing items on which money was spent at LB (T2-18.5) (also see Exhibit 14). [296] JAW also gave similar evidence. [297] In the circumstances I conclude that DW paid over the odds concerning his withdrawal from the partnership. It is difficult to be precise about how much exactly this was. I find he paid the money because of the pressure placed on him by SW over his state of health. [298] SW and the mother would have at least indirectly received the benefit of the money paid by DW. [299] I note that RW has only produced a limited number of records. The original books of account of the W Brothers partnership are not produced. Strangely some of the financial returns for the W Brothers partnership are not produced yet others were. RW in evidence said KW “burnt” them (2-92). [300] PW, KW’s wife was not called to give evidence. Her absence was explained in KW’s evidence namely that her health was not good (T3-30-31). [301] In view of the time that has elapsed it may be she would not recall much anyway as to the books of account. In those circumstances I am not prepared to draw an adverse inference against the Executor for failing to call her but her absence does not assist the court with having to interpret the books of account. Sexual abuse allegations Applicant’s submissions [302] It was submitted that a number of years before his parents’ death, DW found out that his father had sexually abused his two daughters and two of his nieces over a long period of time. KW and DW confronted SW. SW did not deny it and showed no remorse. Despite this DW wished to protect his mother and continued his relationship with both parents and continued to help them out in the way that he always had. It is submitted that this moral factor significantly strengthens DW’s claim. Respondent’s submissions [303] With respect to the abuse claims, it is submitted there is absolutely no evidence upon which the court could safely infer he did anything in respect of his -- 28 of 32 -- 29 granddaughters. It is submitted that the test in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 applies. [304] Even if SW did engage in sexual abuse, this cannot form a basis of a moral claim against the deceased. There is no reliable evidence the deceased knew about the allegations. Evidence and fact findings [305] DW in his first affidavit (Exhibit 1) alleges that 9 years before 2011 he found out that SW sexually abused his daughters and two of his nieces from a very young age until they were in their teens. He alleges that he and his brother KW confronted SW, he did not deny this (para 25). [306] In evidence DW said that after his daughters made the allegations he approached RW and the daughter and he asked them to come with him to confront the father (1- 19.30). RW said he could not come as he was too financially involved with SW (T1-19.40). The daughter refused to go (T1-19.45). After this DW and KW spoke to SW who said “I didn’t do anything they didn’t want me to do.” (T1-20.5). [307] Later JAW and DW fronted SW again who said the same thing (T1-20.11). [308] SW was charged with 3 offences but he died a week before he was to attend court (1-21.11) [309] The mother was not told as he was concerned that it might affect her health (T1- 20.20). DW denied in cross examination that he never had the conversation with RW (2-12- 23). [310] RW gave evidence at T2-67 that when he was living at Dysart, DW or KW rang him and told him of the sexual allegations against SW. He and his wife decided not to approach their daughter to see if it had happened to her. He denied telling DW that he made any comment of his financial relationship with his father in connection with the allegations (2-67.42). [311] In cross examination he agreed that DW had called him and asked him to come with him (T2-74.15). RW refused. [312] RW later had a conversation with his father about the allegations who claimed he could not remember if he had touched one girl but he denied the other (T2-75). [313] In evidence KW said he became aware that several grandchildren accused SW of sexual abuse including two of DW’s and one of KW’s. DW and he confronted SW about it and he did not deny it and said he hoped the good he had done outweighed the bad. (T3-36.35) [314] It seems to me that on the evidence SW made an admission of some sexual misconduct with respect to one or more of the grandchildren - most likely including DW’s. -- 29 of 32 -- 30 [315] I consider that the allegations are relevant to the moral claim to the extent that DW had contributed directly or indirectly as I have found to both SW and the mother’s living arrangements. Despite this SW engaged in an abuse of his position of trust. [316] It is not an overwhelming consideration as it might be if the mother tried to e.g. cover up the allegations. But it is still a relevant one to be considered in the mix. Of itself it would not be sufficient to justify an order in DW’s favour if the other factors were not present. [317] I indicate that I still would have made an order in DW’s favour even if the sexual abuse allegation was not proved. [318] The Respondent has said that the Briginshaw test should be applied to these claims. I think this is so. [319] I find there is sufficient evidence of an admission by SW of sexual abuse. I accept both DW’s and KW’s account of the conversations with SW. [320] In McKay v R (1935) 54 CLR 1 it was held that a confession alone may be enough for a man to be convicted of a crime. [321] Also as was said in Ross v R (1922) 30 CLR 246 “The principle on which such evidence is admitted is well stated in Taylor on Evidence, 11th ed., par. 865, as follows:— ‘All reflecting men are now generally agreed, that deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in the law; their value depending on the sound presumption, that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Such confessions, therefore, so made by a prisoner to any person, at any time, and in any place, are at common law receivable in evidence, while the degree of credit due to them must be estimated by the jury according to the particular circumstances of each case.’” [322] The fact is a person does not usually admit to a crime unless they have committed it. Conclusions- the first stage [323] In conclusion I am of the opinion the Applicant DW has been left without adequate provision for his proper maintenance and advancement in life. [324] In reaching this conclusion I have had regard to his 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 her bounty. [325] I particularly take into account that DW and his wife have significant medical conditions, have limited income, and DW contributed a large proportion of his personal injuries award and paid a significant sum with respect to LB in 1979. -- 30 of 32 -- 31 [326] I also bear in mind the significant value of properties held by the family trust and the capacity the trust has to make significant sums of money. [327] I consider these matters as at the date of death. [328] In those circumstances I consider that the jurisdictional limb has been met. I now reach the second stage of the determination. The second stage Applicant’s submissions [329] With respect to the second stage of the determination, the Applicant submits the court exercises its discretion to make provision as it sees fit. In doing so it must take into account the relevant facts as they exist at the time of the making of the order. There is no significant difference between the facts as of the date of death and the facts at the date of the order. [330] DW’s assets have been reduced primarily because he has had to draw on super to pay his legal fees. The daughter’s liabilities have decreased somewhat. It is submitted DW’s need can best be described as a contingency fund to cover unforeseen expenses as he continues into old age. If he is required to go into nursing home care, he and JAW do not have any fund to cover any bond required without completely exhausting their assets. Likewise if any unforeseen medical expenses occur they would have to be funded from his meagre and dwindling superannuation. [331] In terms of the precise amount, the Applicant submits there is no exact science in assisting the family provision claims. A number of cases were relied on by way of guidance. [332] It was submitted that the range to be awarded to DW was between $100,000 and $120,000 for the following reasons: (a) DW’s extremely weak financial position when compared to the daughter’s; and (b) The significant moral claims identified. Respondent’s submissions [333] It is further submitted that if the jurisdictional step has been met then all factors militate against the exercise of the discretionary second step. [334] The Respondent alleges that the following factors weigh against exercising the discretion: (a) The untruthfulness of the Applicant in relation to the personal injuries claim monies; (b) The strength of the daughter’s moral claim; (c) The fact that this Applicant is also applying for provision out of his father’s estate that is worth between $115,000 and $150,000. Second stage - findings -- 31 of 32 -- 32 [335] The estate is not a large one by today’s standards. The figure agreed during the opening was $323,000. The costs of the Respondent and the Applicant should be taken into account (Bladwell v Davis [2003] NSWSC 882 at [11]). [336] The Applicant’s costs at the end of a three day trial were estimated at $94,000. It is suggested that, as the trial has gone into a fourth day, $100,000 could be adopted as a reasonable estimate of the Applicant’s total costs. This leaves an estate of approximately $223,000. [337] I have had regard to the following cases bearing in mind that each case depends on its own facts: (a) Messenger v Kelly [2008] QDC 125. This involved a net estate of $53,000 to $57,000. 50% of the estate was awarded to the Applicant. (b) Parker v Parker [2006] NSWSC 473. This involved a net asset pool of $347,000. There were claims by three of six adult children. The claim by the first plaintiff was compromised in a sum of $47,000. The orders made were $80,000 for the second plaintiff and $25,000 for the third plaintiff. (c) Herr v Fitzgibbon [2008] NSWSC 297. This involved an estate of between $110,000 and $180,000. Legacies of $40,000 to each of two plaintiffs were granted and $20,000 to a third plaintiff. [338] Taking all matters into account, it is my conclusion that provision should be made to DW from the estate in the sum of $50,000. [339] In reaching a conclusion as to this amount I have had regard to the following: (a) DW’s needs. In particular the need for a buffer/fund; (b) the daughter’s needs; (c) the amounts DW contributed; (d) the promise that DW would be repaid; and (e) the promise that the daughter was to get the house and the fact the daughter was not a partner in the W businesses. [340] It is my view that the daughter should continue to receive the “lion’s share” of both the estate of the mother and SW particularly bearing in mind [339] (e) above. [341] I should indicate expressly that I have taken into account that the daughter is to receive all of SW’s estate and DW none (as is the present position) in reaching my conclusions in this matter. [342] I direct that the parties provide written submissions on the question of costs within 14 days. -- 32 of 32 --