Amprimo v Wynn - [2015] NSWCA 286

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Amprimo v Wynn [2015] NSWCA 286
Hearing dates: 25, 26 May 2015
Decision date: 22 September 2015
Before: McColl JA at [1];
Meagher JA at [2];
Gleeson JA at [101]
Decision:
1. Appeal dismissed.
2. Appellant pay respondent’s costs of the appeal.
3. Notice of motion of Mr Britton filed in Court and dated 26 May 2015 dismissed with no order as to costs.

Catchwords: SUCCESSION – application for family provision order under Succession Act 2006 (NSW), Pt 3.2 – whether appellant “eligible” person – where appellant’s relationship with deceased involved first the provision of sexual services and companionship for payment, and later, after some time without contact, the provision of domestic care – where in period leading up to deceased’s death appellant staying overnight at deceased’s house for short periods while maintaining own residence – whether appellant and deceased living in a de facto relationship or close personal relationship at the time of his death (s 57(1)(b) or (f)) – whether at some time appellant a member of same household as deceased and at any time wholly or partly dependent on him (s 57(1)(e))
Legislation Cited: Interpretation Act 1987 (NSW), s 21C
Succession Act 2006 (NSW), ss 57, 59
Cases Cited: McKenzie v Baddeley [1991] NSWCA 197
Munro v Lare (Supreme Court (NSW), McLelland J, 8 February 1991, unrep)
Porthouse v Bridge [2007] NSWSC 686
Category: Principal judgment
Parties: Janet Emily Amprimo (Appellant)
David Eckford Wynn as Executor of the Estate of the Late Joseph Michael Ryan (Respondent)
Representation:
Counsel:
J Drummond (Appellant)
L Ellison SC with M Pringle (Respondent)
Solicitors:
Heckenberg Lawyers (Appellant)
Foulsham & Geddes Solicitors (Respondent)

File Number(s): 2014/243459
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2014] NSWSC 991

Date of Decision:

27 July 2014

Before:

Rein J

File Number(s):

2012/393499

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Ms Amprimo, met the late Joseph Michael Ryan (the deceased) in 1996 when she was working at the Daily Planet, a brothel in Melbourne. From August 1997, the appellant would regularly provide sexual services and companionship to the deceased at his house in the Sydney suburb of Fairlight in return for payment. At this time, the appellant lived variously between Sydney and Melbourne, working either at the Daily Planet or the Penthouse, a similar establishment in Sydney.

In June 2001, the appellant leased an apartment at Kirribilli arranged for her by the deceased. The appellant continued to accompany the deceased on weekends and he continued to make payments to her. She occasionally returned to work at the Penthouse.

Following an incident in August 2006 which affected the deceased’s personal and professional reputation, he became reclusive and discontinued his relationship with the appellant. She went to live and work in Perth. Their next contact was in November 2010 when the appellant visited the Fairlight house unannounced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Amprimo v Wynn

Details

AGLC: Amprimo v Wynn [2015] NSWCA 286
Case: [2015] NSWCA 286
Decision Date: 22 September 2015

CaseChat Overview and Summary

The appellant, Amprimo, sought provision from the estate of the deceased, Wynn, under Part 3.2 of the *Succession Act 2006* (NSW). The respondent, the executor of the estate, opposed the application. The appeal concerned whether the appellant was an "eligible" person for the purposes of the Act, specifically whether she had a sufficient relationship with the deceased at the time of his death to qualify for a family provision order.

The central legal issues before the Court of Appeal were whether the appellant and the deceased were in a de facto relationship or a close personal relationship at the time of his death, pursuant to section 57(1)(b) or (f) of the *Succession Act 2006* (NSW). Additionally, the Court considered whether the appellant was a member of the same household as the deceased at any time and whether she was wholly or partly dependent on him at any time, as contemplated by section 57(1)(e) of the Act.

The Court of Appeal found that the appellant's relationship with the deceased, which initially involved the provision of sexual services and companionship for payment, and later evolved into domestic care after a period of no contact, did not establish the necessary criteria for eligibility. The appellant's intermittent stays at the deceased's home while maintaining her own residence did not constitute living in the same household or a de facto or close personal relationship at the time of his death. Consequently, the Court dismissed the appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Appellant pay respondent’s costs of the appeal.

3. Notice of motion of Mr Britton filed in Court and dated 26 May 2015 dismissed with no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Amprimo v Wynn [2015] NSWCA 286
Hearing dates:	25, 26 May 2015
Decision date:	22 September 2015
Before:	McColl JA at [1]; Meagher JA at [2]; Gleeson JA at [101]
Decision:	1. Appeal dismissed. 2. Appellant pay respondent’s costs of the appeal. 3. Notice of motion of Mr Britton filed in Court and dated 26 May 2015 dismissed with no order as to costs.
Catchwords:	SUCCESSION – application for family provision order under Succession Act 2006 (NSW), Pt 3.2 – whether appellant “eligible” person – where appellant’s relationship with deceased involved first the provision of sexual services and companionship for payment, and later, after some time without contact, the provision of domestic care – where in period leading up to deceased’s death appellant staying overnight at deceased’s house for short periods while maintaining own residence – whether appellant and deceased living in a de facto relationship or close personal relationship at the time of his death (s 57(1)(b) or (f)) – whether at some time appellant a member of same household as deceased and at any time wholly or partly dependent on him (s 57(1)(e))
Legislation Cited:	Interpretation Act 1987 (NSW), s 21C Succession Act 2006 (NSW), ss 57, 59
Cases Cited:	McKenzie v Baddeley [1991] NSWCA 197 Munro v Lare (Supreme Court (NSW), McLelland J, 8 February 1991, unrep) Porthouse v Bridge [2007] NSWSC 686
Category:	Principal judgment
Parties:	Janet Emily Amprimo (Appellant) David Eckford Wynn as Executor of the Estate of the Late Joseph Michael Ryan (Respondent)
Representation:	Counsel: J Drummond (Appellant) L Ellison SC with M Pringle (Respondent) Solicitors: Heckenberg Lawyers (Appellant) Foulsham & Geddes Solicitors (Respondent)
File Number(s):	2014/243459
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2014] NSWSC 991 Date of Decision: 27 July 2014 Before: Rein J File Number(s): 2012/393499