Amprimo v Wynn
[2014] NSWSC 991
•24 July 2014
Supreme Court
New South Wales
Medium Neutral Citation: Amprimo v Wynn [2014] NSWSC 991 Hearing dates: 28 - 30 April 2014 and 19 June 2014 Decision date: 24 July 2014 Jurisdiction: Equity Division Before: Rein J Decision: Summons dismissed.
Catchwords: EQUITY - Succession - Claim for family provision - Plaintiff not an eligible person - Plaintiff not a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death - Plaintiff not a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death - Plaintiff not wholly or partly dependent on the deceased person Legislation Cited: De Facto Relationships Act 1984 (NSW)
Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Relationships Register Act 2010 (NSW)
Succession Act 2006 (NSW)Cases Cited: Barlevy v Nadolski [2011] NSWSC 129
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCA 221
Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137Category: Principal judgment Parties: Janet Emily Amprimo (Plaintiff)
David Eckford Wynn (Defendant)Representation: Counsel:
J Drummond (Plaintiff)
L Ellison SC/M Pringle (Defendant)
Solicitors:
Heckenberg Lawyers (Plaintiff)
Foulsham & Geddes Solicitors (Defendant)
R d'Apice (Amicus for Mr Britton)
File Number(s): 2012/393499
Judgment
The late Joseph Michael Ryan ("the deceased") died in February 2012. Probate of his will of 18 July 1996 was granted to his executor Mr David John Eckford Wynn.
The beneficiaries named in the will were:
(1) Brian John Britton (one half) ("Mr Britton")
(2) John Hilton Ryan (one eighth) ("Mr John Ryan")
(3) Brian Thompson (one eighth) ("Mr Thompson")
(4) Michael Williams (one eighth) ("Mr Williams")
(5) Phillipa Ella Duncan (one eighth) ("Ms Duncan")
Mr John Ryan died before the deceased, so that the shares to Mr Thompson, Mr Williams and Ms Duncan have become one sixth each.
Mr Thompson died on 3 December 2012.
Mr Britton, Mr Thompson and Mr Williams were long-term family friends of Mr Ryan. Mr John Ryan was the deceased's uncle and Ms Duncan was a long time business associate and friend of Mr Ryan assisting him in all aspects of his horse breeding investments and bloodstock activities.
There are no disputes between the beneficiaries as to how the estate is to be distributed. There have however been claims made by four persons who are not beneficiaries under the will.
Claims were made by Ms Gillian Crighton ("Ms Crighton"), Ms Mirka Christos (also known as Maria and Marie, to whom I will refer as "Ms Christos"), Ms Denise de Bono ("Ms de Bono") and the plaintiff Ms Janet Amprimo. Ms Christos has discontinued her proceedings and Ms Crighton's claim was resolved by the estate agreeing to pay her $20,000 inclusive of costs. Ms De Bono's claim was resolved by a payment of $115,000 inclusive of costs. No claim was made by Ms Wendy Ryan to whom Mr Ryan was married in 1979 and whom he divorced in 1982.
These proceedings are therefore concerned with Ms Amprimo's claims. Ms Amprimo (to whom I shall refer as "the plaintiff") seeks an order pursuant to s 59 of the Succession Act 2006 ("the Act") which is in the following terms:
(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that:
(a) the person in whose favour the order is to be made is an eligible person, and
(b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and
(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.
(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
"Eligibility" is determined by reference to section 57(1) which is in the following terms:
(1) The following are "eligible persons" who may apply to the Court for a family provision order in respect of the estate of a deceased person:
(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,
(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,
(c) a child of the deceased person,
(d) a former wife or husband of the deceased person,
(e) a person:
(i) who was, at any particular time, wholly or partly dependent on the deceased person, and
(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,
(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.
It will be noted that where the claimant is found to have been in a de facto relationship there is no need for factors warranting the application to be made out whereas that is required if it is established that the claimant and the deceased were living in a close personal relationship and where the claimant was dependent on the deceased. In relation to de facto relationship and close personal relationship that relationship must exist as at the date of death which is not a requirement for a claimant found to have been dependent. In the latter case it is sufficient if the person was in such a relationship.
Mr Drummond of counsel appears for the plaintiff, and Mr Ellison SC with Ms Pringle, appears for the estate. Mr D'Apice a solicitor appeared on 19 June 2014 for Mr Britton, seeking to persuade the Court that if any order was made in favour of the plaintiff that it not affect the share to go to Mr Britton.
The deceased was, from 1979 to 2006 working as a solicitor. He specialised in personal injury matters and his firm, McLelland's, was very successful in that endeavour. He also developed a keen interest in horse bloodstock and made significant money from those endeavours.
The plaintiff puts her case primarily on the basis that she was living in a de facto relationship with the deceased at the time of his death (s 57(1)(b)), alternatively that she was a person with whom the deceased was living in a close personal relationship (s 57(1)(f)) and as a further alternative that he was a person on whom she was, from November 2010 until his death, wholly or partly dependent (s 57(1)(e)(i)). The plaintiff seeks an order for the payment to her of approximately $2.8 million out of the estate.
In support of her case Ms Amprimo relies on her affidavits of 17 December 2012, 6 September 2013, 9 September 2013, 26 March 2014 and 23 April 2014.
The defendant read a number of affidavits in his case they being:
(1) Affidavits of the executor Mr Wynn of 8 March 2013, 5 June 2013, 21 March 2014 and 1 April 2014.
(2) Affidavits of Mr Williams of 3 June 2013 and 27 March 2014.
(3) Affidavits of Mr Britton of 4 April 2013, 4 June 2013, 26 June 2013 and 31 March 2014.
(4) Affidavit of Ms Duncan of 20 August 2013.
(5) Affidavit of Mr Ellis (a friend of Mr Thompson) of 28 June 2013.
(6) Affidavits of Mr Geddes the defendant's solicitor of 3 June 2013, 19 June 2013, 21 March 2014 and 28 March 2014.
The net value of the estate available for distribution to the beneficiaries is approximately $6.8 million.
Ms Amprimo by her affidavits has descended into a great deal of detail but in essence what she says is as follows:
(1) She first met the deceased who was a client at an establishment called the Daily Planet at which she worked (and had worked for several years) as a prostitute.
(2) After a number of visits to the establishment and time spent with her, the deceased whilst in Melbourne invited her to come out with him which she initially refused to do. Subsequently the deceased invited Ms Amprimo to come to Sydney and stay at a hotel in Sydney at his expense which she did on a number of occasions between 1996 and May 2001. The plaintiff says that on her visits to Sydney she would work at a Sydney establishment called the Penthouse which was very similar in style and purpose as the Daily Planet. I shall refer to the period between 1996 and April 2001 as "the first period", and to the period between May 2001 and August 2006 as "the second period". I shall refer to the period November 2010 until February 2012 as "the third period".
(3) In May 2001 the deceased arranged for a lease to be entered into in Ms Amprimo's name for an apartment in Kirribilli in Sydney (a Lower North Shore harbour suburb) ("the Kirribilli apartment"), and which apartment he furnished quite extensively. Ms Amprimo resided in that apartment until 21 August 2006 when she went to Perth. She continued to rent the apartment until January 2010 when the apartment was flooded and sustained water damage. She allowed the lease to lapse and returned to Western Australia (Exh A1 p 43, para 111 of the plaintiff's first affidavit).
(4) The deceased provided money to the plaintiff on various occasions, from which money the plaintiff paid the $1100 monthly rental and other expenses connected with the apartment and its upkeep. How much the deceased paid is, following cross-examination, not clear but the plaintiff has said that he often paid $500-$1000 per week to her. The deceased bought her a pushbike as well.
(5) The plaintiff says that she did both in the first and the second period visit the deceased at his home in Fairlight (which I shall, in the balance of these reasons, refer to as "Fairlight"), and more so in the second period, particularly on weekends but also on occasions on weeknights as well (T86.33-86.50 and T88.16-88.35).
(6) There was in the second period a time when, according to the plaintiff, she had ceased working in the sex industry but there is no doubt that she did continue to pay for the Kirribilli apartment even after the end of the second period when the deceased did not pay her any money.
(7) The plaintiff was not the only person with whom the deceased was consorting between 1996 and 2006. There is evidence that Ms de Bono and Ms Christos both asserted they had, and almost certainly did have, as the plaintiff herself believed they did, a relationship with the deceased. The plaintiff asserted that she knew Ms de Bono as Nicole and that Ms de Bono also worked at the Daily Planet, and that she knew Ms Christos from the Penthouse.
(8) In 2006 the deceased was acting as solicitor for Mr Marcus Einfeld a retired Federal Court judge who had sought to evade conviction for a speeding offence by attesting in a statutory declaration that he was not the driver of the vehicle which had been detected travelling in excess of the speed limit by a camera. The case attracted a very high level of publicity and in August 2006 Ms Christos claimed to have discovered material in Mr Ryan's garbage bins placed outside his home for collection which material related to the case brought against Mr Einfeld. The deceased felt that his position as Mr Einfeld's lawyer had been adversely affected and he resigned from the case. Within months of the publicity the deceased sold his practice to Slater & Gordon and decided not to renew his practising certificate. I shall refer to these events as "the documents incident".
(9) The plaintiff's evidence is that she received phone calls from the deceased telling her about the documents incident and in which he and she had the following conversations:
At Exh A1 p 39, para 100:
I then called a taxi and travelled from the Kirribilli to the coffee shop. Michael and I then walked up to the Cross where we sat and had coffee. Michael then said to me words to the following effect:
Michael: I am sorry about all of this. Now that Marie has gone to the newspapers it is all over the place. I had no idea she was going through my rubbish. This is going to cause great problems for both me and Marcus. You will need to look after yourself. I think I should go to Singapore for a short while and see Ivan Allen.
Janet: It will be all right, just let thing blow over.
Michael: No, I don't think so. Marie is going to make a big issue out of it. Once the press get hold of that material it is going to make it very difficult for me to continue to act for Marcus. I think I need to get away for two or three weeks. If I am over there it may help things blow over.
Janet: Do you want me to come with you?
Michael: No, I can't get you involved. I don't think you should come to Singapore. It is best for you if you stay away from me and look after yourself for a while.
and at Exh A1 p 40, para 103:
Over the next one to two weeks I received no telephone calls from Michael and did not know where he was. On one Sunday I telephoned the Fairlight property and Michael answered the phone. I said to him words to the following effect:
Janet: Michael I understand why you had to get away but why couldn't you telephone me and let me know how you were going?
Michael: Please Janet don't do this. Just stay away from me till this all blows over.
and at Exh A1 p 41, para 105:
In or about November 2006 I returned from Perth to stay at the Kirribilli apartment and to see Michael. As I had not heard from Michael I travelled to the Fairlight property and I found him at home. I knocked on the door and Michael answered. He then said to me words to the following effect:
Michael: Janet, you can't come here. You have to go. Somebody could be watching.
Janet: Michael, I haven't heard from you for months.
Michael: No, but you have to go.
Janet: Right, if you want me to go I'll go.
(10) The plaintiff's evidence in her first affidavit was that prior to the call from the deceased about the documents incident she had received a call from Ms Duncan in which Ms Duncan said:
Philippa: You need to be careful, someone is out to hurt you.
Janet: Who?
Philippa: I can't tell you. You just need to be careful.
(At Exh A1 p 38, para 98).
(11) In her affidavit of September 2013 the plaintiff said that when she spoke to the deceased about the call and said "Philippa called me earlier..." that should be corrected by replacing "Christos" for Philippa: see page 134, para 12. The plaintiff said that when she said "Christos" to the deceased she knew that it was not Christos but she thought that Christos had put "Somebody up to it".
(12) There is no dispute that the deceased became reclusive after the documents incident and he shut himself off from his small circle of friends.
(13) In late 2006 at a time when she was normally working in Perth, she visited the deceased at Fairlight and confronted him about his decision to be on his own and she tore up the photos that the deceased had of her at Fairlight, threw them to the ground together with the key to the house and left Fairlight (see Exh A1 p 41, para 105).
(14) From August 2006 until, even on Ms Amprimo's case, November 2010, she had no contact with the deceased. She had gone to Perth and was working at Club 316 in a very similar set up to that which she had worked at Melbourne and Sydney. The plaintiff's evidence is that her sms messages and calls to the deceased were not returned and that when on several occasions she came to Sydney and visited the deceased's home at Fairlight he did not answer the door (see Exh A1, pp 41-42, paras 106-108).
(15) In November 2010, the plaintiff says that she visited the deceased's house at Fairlight, detected a way into the premises and found him in an emaciated state living in deplorable conditions. Her evidence is that she effectively nursed the deceased back to good health.
(16) On New Years Day 2012 she organised a lunch at Fairlight which was attended by Mr Britton and Mr Thompson.
(17) The plaintiff says that from her return to Fairlight in November 2010 until the deceased's death in February 2012, she would spend time at his house cooking and cleaning and assisting him. She says that she slept in a different room to the deceased and that they had no sexual relations at all during the third period. She says that she had purchased a number of items out of her own money namely: a mattress, washing machine, dryer, vacuum cleaner, line, pillows, doona, mattress protector, toaster, microwave, water filter, plus toiletries, electric shaver, electric toothbrush and clothing (see Exh A1 p 50, para 130).
(18) When she was not living at the Fairlight property the plaintiff was in Perth working. When in Perth she received an email from Joanne Dan, a friend of the deceased, to say that the deceased was uncontactable and on 16 February 2012 she was informed that the deceased had been found dead by local police.
(19) The plaintiff who had planned to be in Sydney on 22 February, purchased a ticket and came from Perth for the funeral on 22 February 2012.
(20) The plaintiff says that during the second period in about November 2005 the deceased after having sought her preferences in style and colour of rings purchased an expensive dress ring and gave her the ring (suggesting to her that it would fit best on her wedding ring finger) at the office of his late father in the city. She does not say that he proposed to her or that he asked her to marry him, or himself put the ring on her finger.
(21) The plaintiff says that in late 2011 or early 2012 she had the following conversation with Mr Ryan:
Michael: Janet, I am not happy with you travelling back and forth from Sydney to Perth. I would like you to get out of the industry. I would like you to live here permanently.
Janet: Michael, I have been thinking about this for some time. I would like to open a coffee shop. I can run it and you could look after the books. I think that would be good for both of us. We would be able to do it together. I think it would be good for both of us. I used the insurance money from the flood at the Kirribilli apartment to pay off my home loan. That home is now unencumbered. I could draw down against that and I could put some money into the business as well.
Michael: No that is not necessary. I can look after the money side of things.
Janet: No, I want to put in some money if we are going to go into business together.
Michael: When you get back next time we will start looking for a business that we could look at buying.
Janet: Yes that would be good.
(At Exh A1 pp 71-72, para 191).
(22) The plaintiff deposed to having a problem with her right hip, causing her to limp "quite badly" (para 159, first affidavit Exh A1 p 60). She sought treatment for this in Perth and says that that is the reason she did not return to Sydney for a couple of months. Evidence from some of the defendant's witnesses cast doubt on the accuracy of her claims about her limp but she was not cross-examined on these matters and no challenge was made to her on cross-examination.
In accordance with directions made I received detailed written submissions from the parties prior to 19 June 2014 which was the date for oral submissions in the matter. I shall refer to the plaintiff's closing submissions dated 21 May 2014 as "the PCS", the defendant's closing submissions dated 16 June 2014 as "the DCS" and the plaintiff's closing submissions in reply dated 18 June 2014 as "the PCSR".
The plaintiff's credit
The Executor through his counsels' submission contended that the plaintiff lacks credibility, having regard to "consideration of her affidavit evidence, her oral evidence and the documents on which she relies" (see para 9 of the DCS). In support of his contention numerous portions of the transcript were extracted (see para 10 at pp 4-28 of the DCS).
I note that the PCSR do not respond to the DCS on the issue of the plaintiff's credit, and nothing was said in oral submissions about the matters raised against her.
I accept the defendant's contention that considerable doubt was induced concerning the plaintiff's credibility and reliability by virtue of the following matters:
(a) The plaintiff did not declare to the Taxation Department that she was in a de facto relationship with the deceased at any time, describing herself as single in all her tax returns and which returns she signed as true and correct.
(b) Her evidence about why she called herself an entrepreneur in the tax returns and her evidence (at T52-53) about the deductions she claimed for a business was unsatisfactory.
(c) Her evidence about how the earnings referred to in the returns were established showed that they could not be reliable (T124-126 and T128).
(d) She changed her evidence about timing in a subsequent affidavit and asserted that she had a better recollection a year after the first affidavit than when she swore the first (T58.22-49), which I am unable to accept.
(e) She agreed that she could not be confident about her recollections from 15 years earlier (T59.20) and that she would not be able to say in relation to her principal affidavit what was accurate (T66.33-36 and T90.03-09).
(f) She said (at T63.26) that during the second period she never 'worked', which was consistent with what she had said in her affidavit, but she later accepted that she had worked as a prostitute whilst in Sydney during the second period (T88.47-89.12 and T95.26-96.1).
(g) Her evidence that the deceased gave her between $500 and $1000 a week throughout the second period was tested and undermined (see T73.41-74.15 and T89.44-90.43).
(h) She denied that she asked Canturi jewellers to put her name on the insurance policy but she accepted that she wanted to become the owner for insurance purposes and that she did go to Canturi's after she stopped seeing the deceased in 2006 (see T104.40-105.20). I am satisfied that she did at the time, and for good reason, accept that her relationship with the deceased was over, as is demonstrated not only by her visit to Canturi to discuss insurance of the ring but also by her tearing up photos of herself at the deceased's home and throwing down her keys to Fairlight and her move to Perth for work.
(i) Her evidence of what Ms Duncan said to her at the time of the documents incident was challenged by Ms Duncan. I accept Ms Duncan's version not only because I accept Ms Duncan as a truthful witness generally (no reason to doubt her veracity having been suggested) but because the content of the conversation which the plaintiff asserts is unlikely and draws no support from any objective evidence. The plaintiff said she later found out that the person who had called her was Ms Duncan. I did not find the attribution of blame to Ms Christos for the call as at all convincing, particularly since Ms Duncan's version of the conversation is quite different to that of the plaintiff's.
(j) She said she had signed documents as correct when she had not, on her evidence, read them (T127.1-46) and I found her attempt to explain omissions in her first affidavit as unconvincing (see T74.10).
(k) Her evidence about her knowledge of, and involvement with, the property she owns at Lyonville and its rental was opaque and unsatisfactory.
(l) Her demeanour in the witness box was somewhat strange and did not assist in producing confidence in her reliability and although the transcript does not fully reflect this aspect of demeanour, see for example T71.17-47, T89-90.9, T109.45-112.37, T114.36-115.13, T115.40-116.1, T121.33-122.3 and T126.30-127.44.
I think there is here a need for considerable caution in accepting the plaintiff's evidence about any matter which is not corroborated by other independent evidence. However having regard to what occurred in the course of the trial there is one important matter on which I should accept her evidence. Although the plaintiff's version of events in November 2010 (see [17](15) above) was open to challenge based on the evidence of Ms Duncan and some bank documents, the plaintiff was not cross-examined as to her assertions that she found the deceased in November 2010 in "an emaciated state living in appalling conditions" that she embarked upon a significant cleaning campaign of Fairlight and nursed the deceased back to health. The failure to cross-examine the plaintiff led Mr Drummond to seek to have the evidence of Ms Duncan to a contrary effect in respect of that same time excluded (Exh A1 p 313 para 60(b)) and that application was successful. There was also evidence from Mr Britton that the plaintiff had told him on or soon after 20 November 2010 of the condition in which she had found the deceased at Fairlight that was consistent with her version. I proceed on the basis that the plaintiff did in November 2010 find the deceased in a shocking condition and that she cleaned up the house, set about helping the deceased to a hygienic state and helped put him back on a healthier lifestyle by late 2010. I accept that the plaintiff did assist the deceased with household duties and that when at Fairlight she cooked meals in advance for him. She did, on one occasion, receive approximately $850 from the deceased out of coins and notes she found around the house (see Exh A1, pp 56-57, para 148). Her evidence is that he wanted to give her the $1700 and that she refused but the next day said "we've both worked hard for it" (Exh A1 pp 56-57, para 148) and that she used the money for purchasing items for the house and food but also to pay some of her own bills. I find that the deceased was by the end of December 2010 back to reasonable health and clean and tidy in his appearance based on the timing of visits of Ms Duncan (see [24](14) below) and the fact that he was also in contact with Mr Wynn on a fairly regular basis (see [29](4) below).
The credit of other witnesses
There was cross-examination of Mr Williams, Mr Wynn, Ms Duncan and Mr Britton by telephone conference. Mr Drummond made no attack on their credibility. There is an issue as to Mr Britton's needs.
I accept Ms Duncan's evidence in its entirety. It leads me to make the following findings of fact leaving aside the uncontentious matters:
(1) On 22 August 2006 the deceased rang Ms Duncan and said:
"Can you call this mobile number? Would you just call and say that I am unable to see her any more and that she should just go away".
(Exh A1 p 305, para 19)
(2) That Ms Duncan rang the mobile number (which was the plaintiff's number) and said to the plaintiff:
"Michael Ryan has asked me to call you with a message. He is unable to see you and suggests you should go away"
to which the plaintiff replied with a torrent of words including swear words (Exh A1 p 306, para 20).
(3) In early September Ms Duncan had a conversation with the deceased prompted by a newspaper article involving Ms Christos. Ms Duncan asked, "Michael what is going on with these women?" to which the deceased replied, "They were no commitment!" (see Exh A1 p 306, para 25).
(4) The deceased became increasingly withdrawn from public life and became reclusive, seeming to avoid other people unless it was necessary for his business interests.
(5) Ms Duncan visited the deceased on many occasions between 2007 until his death in relation to his business dealings. Her estimate is that she visited him at least once every two months on average.
(6) She usually visited the deceased around lunchtime and she would take food for the lunch they would eat together.
(7) On each occasion she attended the deceased was well dressed, clean and clean-shaven, and his personal hygiene impeccable. He was clear and lucid, but "showed little emotion or empathy, even regarding events that had affected people who were well known to him" (see Exh A1 p 308, para 35).
(8) Although on one occasion she noticed he appeared lame, and offered to take him to the doctor, he declined the offer.
(9) There was evidence that the deceased was not attending to mail or vacuuming or dusting the house between 2007-2012.
(10) In the period 2006 to 2012 he lost a lot of weight that he had put on between 2000 and 2006.
(11) The deceased would watch DVDs of his prize racehorse racing but not attend the racetrack. He would not visit the racehorses or stables but apparently did listen to the races.
(12) On 16 February 2012 Ms Duncan received a call from the plaintiff and had the following conversations (see Exh A1 p 310, para 46):
Plaintiff: I am Janet. We met at Michael's on his birthday in December 2011. I am calling from Western Australia. I heard Michael died. Did you know about the funeral arrangements?
Me: How did you get my number?
Plaintiff: It wasn't hard to find.
Me: If that's so, why haven't you called me before?
Plaintiff: The last time you telephoned me I was very rude to you.
and (in part)
Plaintiff: I broke into Michael's house to find him. He wasn't in very good shape and his bedroom was filthy. He told me to leave, but I refused. At first Michael would not allow me to stay there so I visited him from time to time. Then I had a blow up bed down in the lower level entertainment area. When Michael was unresponsive I tried jumping on him and tickling him to provoke some sort of emotional response. I think Michael killed himself.
Me: I doubt it. Michael has never said anything that indicated to me that he was suicidal. Given his family history a heart attack is more likely.
(13) Ms Duncan did not recall any call from the plaintiff to her whilst the deceased was alive. In the light of the conversation set out above at (12) it is likely that the plaintiff did not call her whilst the deceased was alive.
(14) She visited the deceased at his home on 22 December 2010 and she does not recall him being sick or looking unwell and she visited him on 1 August 2011 and he was quite well and able to discuss coherently and in detail the mating program of his horses. The plaintiff was present at the house when Ms Duncan arrived but the plaintiff left saying she was going for a run.
Mr Williams
Mr Williams did, in cross-examination, resile from some of his evidence in his affidavit but I accept that the matters on which he (and Mr Britton) were deposing were matters on which a high degree of accuracy could not be expected. Having regard to his evidence and to the cross-examination I think he was essentially an honest witness and I find that:
(1) He was a close family friend of the deceased and the deceased had given him a key to Fairlight.
(2) He did not see the plaintiff on the many occasions he was at the Fairlight home. He met her in about 2001, on a weekend (Exh A1 p 233, para 28). She described herself as "a friend of Michael's visiting from Kirribilli" but did not see her again until January 2012, even though he visited Fairlight regularly but particularly on weekends and school holidays (see Exh A1 p 233, para 30).
(3) He met the plaintiff at Fairlight in January 2012 and had a conversation with her in which she said:
"I'm trying to help Michael but he is very stubborn he's refused my offer. I'm going home to Perth on Monday to go to work"
(See Exh A1 p 234, para 33). The offer to which the plaintiff was referring has not been identified by her and she was not asked about it in cross-examination.
(4) The deceased did not mention the plaintiff or talk about the plaintiff to Mr Williams.
(5) The deceased, after his divorce in 1982, said to Mr Williams that in the future he would have girlfriends and that dams and fillies would be his major interest (Exh A1 p 232, para 13).
(6) He met the plaintiff (other than at the funeral) on only two occasions in the second period and once in the third period (on 1 January 2012), although he was a fairly frequent visitor to Fairlight.
(7) He did make reference to the plaintiff having been with Michael in the last month before his death in his eulogy to the deceased at the funeral. He remarked that she must have been the last person to see him alive. Mr Williams said that he did not recall saying to the plaintiff "I am sorry for your loss" (T268.10). He denied having said in the eulogy that the plaintiff had given him her phone number so that he could contact her (T268.18-45).
(8) He did not recall that in his first meeting with the plaintiff in 2006 the deceased drew his attention to the plaintiff's hand and said "what do you think of Janet's ring?" or that he said in reply "I think its beautiful" (T265.14-22).
His lack of contact with the plaintiff in the second period tends to suggest that the plaintiff was not in as regular contact with the deceased at Fairlight as her evidence would suggest and points to the plaintiff having less significance to the deceased than the plaintiff claims but I do not regard Mr Williams' evidence as destructive of the plaintiff's case that she was more than a prostitute so far as the deceased was concerned.
Mr Britton
Mr Britton gave evidence that:
(1) In about March 2001 the deceased took him to the Kirribilli apartment and showed him the Kirribilli apartment saying "I found this for Janet. Do you like it?" and that he went with him again to the unit after the deceased had had it furnished and the plaintiff said "Michael did it for me". The unit, Mr Britton says, "was beautifully furnished" (Exh A1 p 264, paras 41-43). Mr Britton agreed that the deceased appeared to be proud of his having organised the apartment and he told him it was rented not purchased (T190.37-41 and T191.09-18).
(2) He visited the Kirribilli apartment with the deceased on another occasion when the plaintiff was not present (see T192) and he visited on other occasions with the deceased when she was (Exh A1 p 264, para 44 of his affidavit).
(3) He had a conversation with the plaintiff in which she told him she was a safety officer for the mines in Western Australia (see Exh A1 p 265, para 45 of his affidavit).
(4) In late 2010 the plaintiff called Mr Britton and asked Mr Britton how the deceased was and he told her that he had not seen or heard from him but that he had heard he was physically ok.
(5) The deceased told Mr Britton in a discussion about the plaintiff that he "wouldn't have any of the ladies living in his house permanently" (T193.15). The deceased never told Mr Britton of the plaintiff's real occupation (T194).
(6) The deceased brought the plaintiff to dinner at Mr Britton's home several times in the second period.
(7) In December 2011 the plaintiff called Mr Britton and invited him to have lunch on New Years Day at Fairlight. Mr Britton went to the lunch. Mr Brian Thompson was also present. He says that the deceased looked very frail but that the deceased cooked meat on the BBQ. Mr Thompson and Mr Britton stayed until about 4.15 pm. The deceased, he said, was vaguer than he used to be (T196.12).
(8) He received a call from the plaintiff on or about 20 November 2010 in which she told him that he had found the deceased in a poor state of health, and described to him the condition of Fairlight similar to her evidence in this Court.
(9) The garden was unkempt when he visited, trying unsuccessfully, to see the deceased and what he could see of the house was unkempt as well.
(10) He was not able to make his own way to Fairlight because of ill health. When he went on New Years Day in 2012 he had to be helped out of the car.
(11) The plaintiff rang Mr Britton a number of times from November 2010 until January 2012 informing him of the deceased's condition.
(12) He first met the plaintiff in a David Jones Store in the city in the company of the deceased. He was, prior to 2006, a regular visitor to Fairlight but in the second period he would tend to visit the deceased during the week as he anticipated that the plaintiff would be present on the weekend. He did see her at Fairlight on a number of occasions when he visited on a weeknight.
(13) His evidence on needs is that he has had major health problems and has very limited mobility requiring now a frame, usually leaving his residence only for medical appointments. He anticipates that he will need to take accommodation in a retirement home that provides nursing assistance which he has been informed will cost him more than $1.2 million plus "very high monthly charges for ongoing care" (Exh A1 p 285, para 31).
(14) Mr Britton owns a unit which he valued at between $520,000and $550,000 as at June 2013.
(15) Mr Britton has received a partial distribution of $510,000 from the estate and obtained a loan from the estate of $250,000.
(16) He presently has $472,000 in cash.
(17) He has annual income of $29,760 including Centrelink benefits, the balance from superannuation fund lifetime pension.
(18) He pays $2,776 a week for carers.
I formed the view that Mr Britton is a truthful witness and I accept his evidence. His evidence points to the deceased having regard for the plaintiff that went beyond a mere client/prostitute relationship.
Mr Wynn
The evidence of Mr Wynn is that:
(1) He was the deceased's accountant since 1975.
(2) The deceased gave him a power of attorney in May 2006.
(3) The defendant would not answer his phone in the house after the documents incident, but he and the deceased would speak once a month.
(4) He visited the deceased once every two months from 2006 and found the deceased unwilling to leave the house.
(5) When he visited Fairlight after the deceased's death it was unclean and filled with rubbish.
(6) The deceased operated a bank account at Manly from which using an ATM monies were withdrawn from time to time.
(7) That after Mr Jack Ryan (the deceased's uncle) died he said to the deceased that the deceased's uncle was in the will and had died and he asked whether the other persons mentioned in the will (other than Ms Duncan) were alive. The deceased told him that they were and that he did not want to alter his will (T242, 243.3 and T256.5).
(8) He took over managing all of the deceased's financial affairs (other than matters pertaining to his bloodstock interests which were managed by Ms Duncan), in or around August 2006 on a day-to-day basis and the deceased had only limited interest in what Mr Wynn was doing on his behalf (T254.34-255.31).
(9) The deceased never mentioned the plaintiff.
Much of what Mr Wynn said is not contentious but in any event I regard Mr Wynn as a reliable and honest witness whose evidence I accept. His (albeit limited) evidence does not support the proposition that the deceased believed he had any obligation to the plaintiff by virtue of a de facto or even a close personal relationship and the deceased's failure to mention the plaintiff to Mr Wynn at all is indicative of the limited significance that the plaintiff had for him.
De Facto Relationship
There have been many cases in which the concept of de facto relationship has been analysed. Some of these cases have concerned state legislation such as the De Facto Relationships Act 1984, the Property (Relationships) Act 1984, the Commonwealth Family Law Act 1975 as well as the Succession Act 2006 and Family Provision Act 1982. I have found Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 per Hallen As J, as his Honour then was, and Jonah v White [2011] FamCA 221, per Murphy J, particularly helpful.
As and from 19 May 2010 the definition of "de facto relationship" contained in s 21C of the Interpretation Act 1987 (NSW) is incorporated into the Act by virtue of Sch 3.105 [3]-[5] of the Relationships Register Act 2010. Section 21C(1), (2) and (3) are in the following terms:
(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a "de facto relationship" with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
Jonah v White was concerned with s4AA of the Family Law Act 1975 and Thompson with the Act which at that time incorporated s4(2)(a) of the Property (Relationships) Act 1984.
As at the deceased's death the relationship (however characterised) had recommenced in November 2010 after approximately 4 years in which the plaintiff and the deceased had no contact. In the third period, on the plaintiff's evidence:
(1) The relationship in this period had a duration of 15 months. Because it followed a four-year absence of any relationship and because its nature seems to have been wholly different, it ought be viewed independently of the second period and a fortiori the first period.
(2) There was no sexual relationship at all in the third period.
(3) The plaintiff often stayed at Fairlight whilst in Sydney but she was there for short periods spending the great bulk of her time in Perth where she worked full time as a prostitute and where she resided. Mr Ellison provided the Court with a summary of the plaintiff's movements based on evidence before the court which summary was not challenged. Not only did she spend the bulk of her time in Perth, even when she was in Sydney she did not always stay at Fairlight.
(4) The plaintiff did not provide any money to the deceased and the deceased did not, throughout the third period provide any money to her other than an amount of $850 - there was no financial dependence or interdependence. There was no mingling of assets at all. There was no joint ownership or acquisition of property.
(5) She did purchase some items for the house to which I have earlier referred but she claimed those items as her own and recovered them from the executor after the deceased's death. I am unable to accept the plaintiff's evidence that she did that (accompanied by her solicitor) because she had become "stupid with grief": T141.15.
(6) She cooked meals and provided domestic assistance to the deceased whilst she was in Sydney.
(7) She provided care in November and December 2010 to the deceased that helped bring him from a woeful condition to a reasonably good condition. I find based on Ms Duncan's evidence that the deceased had returned to reasonable health within a period of no more than four to five weeks.
(8) She arranged for friends of the deceased to come to a lunch at Fairlight on New Years Day 2012.
(9) When she needed to stay in Sydney in connection with her hip problem she asked the deceased's permission to stay at his house (T135.22-31 and see Exh A1, p 62 para 164 of the plaintiff's first affidavit).
(10) She had an argument with the deceased in mid January 2012 following which she went to Perth. She told Mr Williams (on her evidence) that she and the deceased had had "a huge fight", that "Michael's really done it this time. He has gone too far. I need to go back to Perth but I will be coming back to Sydney to see Michael. But I am so angry with him that I am not sure I can forgive him this time" (Exh A1 p 142, para 52). Mr William's recollection is that she told him the deceased had "refused her offer" and she was going home to Perth (Exh A1 p 234, para 33). She did say in her evidence that the tension between them ended and the relationship returned to what it was.
(11) There were no children of the relationship and hence no care or support by the plaintiff of any children.
(12) The "public" aspect of the relationship was virtually non-existent and the reputational aspect was extremely limited as well since the deceased was a recluse and the plaintiff was working as a prostitute in Western Australia. I have referred to the fact that Mr Wynn never met the plaintiff until the funeral and Ms Duncan only met her once and in the third period.
(13) She was rebuffed or not encouraged when, on her case, she sought to involve herself in the deceased's care.
I accept that the plaintiff did provide assistance to the deceased in November and December 2010 and continuing domestic assistance on occasions when she was in Sydney until his death but the deceased did not encourage the plaintiff to stay at Fairlight and did not seem to treat her as a close friend whose support and attention he wished for. He had become a recluse and, on one view, he tolerated her presence (which for at least some of the time was for her own purposes due to her hip problems) in return for her cooking and domestic duties provided when she was in Sydney. The deceased did not return her calls from Perth, when according to her she rang him or sent sms messages to him except when she messaged him she might need an operation on her hip. He did not contribute to the costs of any treatment at any time in the third period.
The plaintiff's explanation for the fight referred to in [34](10) and the absence of any evidence from her about the offer to which she referred in her conversation and which she said the deceased had not accepted rather suggests that contrary to the case that she puts, whatever relationship that existed in the third period had also come to an end before his death. She gave an explanation in cross-examination that the deceased's refusal to have proper care for his arm was him going too far, or was something for which she could not or might not be able to forgive him which seems very unlikely. Her explanation of why she had told Mr Williams that she was going home to Perth was unconvincing and did not explain the offer which I find she told Mr Williams she had made and which she said the deceased had refused.
Even though the deceased's attention was drawn to the question of his will after his uncle's death in 2011 he indicated that he did not wish to amend it. Whilst it is clear that Mr Wynn was not asking the deceased specifically whether he wanted to add a new beneficiary the deceased was a solicitor and if he had wanted to make a bequest to the plaintiff that would have been an appropriate time for him to do so. I draw from his not having made reference to the plaintiff the inference that he did not wish, and saw no need, to include in his will any bequest to the plaintiff.
There was, in the Estate's submissions a theme that the plaintiff had overborne the will of the deceased in the third period imposing herself on him. Whilst the relationship between the plaintiff and the deceased was unusual and difficult to characterise, and the deceased was clearly reclusive but I do not think the evidence supports a finding that the deceased's will was overborne by the plaintiff and that that is why he permitted her to stay at Fairlight when she was in Sydney. The plaintiff does say that at one point the deceased asked her to leave Fairlight (see Exh A1 p 46, para 120) and she herself gave evidence of him refusing her assistance. There is also the conversation with Mr Williams when she said that he deceased had refused her offer.
In respect of the conversation deposed to by the plaintiff and set out in [17](21) even accepting that the plaintiff told the deceased that she would like to establish a coffee shop into which she would put her own money and that she suggested that deceased could look after the books, and even accepting that there was discussion about them going into business together, I do not have sufficient confidence in the veracity of the plaintiff to accept without any corroboration whatsoever that the deceased told her he wanted her to live in the house permanently. The plaintiff on her own evidence made no reference to this conversation when she informed Ms Duncan that she thought the deceased had committed suicide: see [24](12) above.
I should note that Mr Drummond submitted that the fact that the plaintiff was a prostitute should not be permitted to intrude into the Court's consideration of whether the deceased and the plaintiff were in a de facto relationship. Mr Drummond also contended that since the fact that the plaintiff was a prostitute did not concern the deceased it ought not concern the Court and the Court should not superimpose any view about lifestyle choices on the questions to be determined. I accept that a man can have a de facto relationship with a prostitute and that in determining whether eligibility is established under s 57 the Court should not seek to impose its own view of morality, but the nature of her occupation is a relevant matter to be taken into account along with many others in determining whether the claimed relationship exists or not, as is the fact that the plaintiff was, in the third period when she claims to have been in a de facto relationship, working more or less full time in WA where she had a residence. The Court of Appeal has made it clear that de facto partners can have two residences Hayes v Marquis [2008] NSWCA 10 at [78]-[81] but once again the fact of separate residence is a material matter to be taken into account.
I take into account that a de facto relationship can exist even where two people are living in separate homes but quite apart from the question of length of time spent together there must, I think, be a romantic aspect to their relationship and in this period there was none, the romantic relationship, such as it was, having ended in August 2006.
Mr Drummond contended that it needs to be borne in mind that the plaintiff was poorly educated and from different strata of society to the deceased. He also referred to the plaintiff's evidence that she was a shy person (see T76.37), and sought to make from this the case that that is why the plaintiff did not push on the deceased the idea of marriage or a more permanent relationship. I find it difficult to accept that explanation. It was not the plaintiff's evidence and she herself accepted that she had a reluctance to be tied down and that she wanted to retain her independence: see T72.25-27, T82.48-50 (first period), T90.34-44, T 106.43-108.7 and T157.23-40 (second period). As to the plaintiff being a shy person and inferentially "timid" I am not persuaded that that contention has been made out, having regard to her demeanour or the evidence to which she has deposed.
Mr Drummond made reference to the plaintiff's evidence that she and the deceased had visited three units one weekend in the second period after the deceased had, on her evidence, said that he would like to buy a unit for her to live in but the plaintiff said she did not want him to spend the money. That discussion preceded the identification of and renting of the Kirribilli apartment and it is therefore an idea which the deceased, for whatever reason, did not pursue. His complete lack of involvement in the upkeep of the plaintiff in the years between the second and third period, and her continued rental of the Kirribilli apartment, demonstrate that whatever relationship he had had was over in every respect from his point of view. Nor am I persuaded that it was not over from her point of view.
I conclude having regard to all of the matters in [33]-[40] above that the plaintiff and the deceased were not living in a de facto relationship at the time of the deceased's death, whether regard is had to the third period alone or in conjunction with the second period.
The second period
I deal now with the second period. In my view the long hiatus between the second and third period precludes consideration of it as part of the basis upon which it could be held that as at death the deceased and the claimant were living in a de facto relationship but I shall nevertheless consider whether even in the second period there was such a de facto relationship.
The circumstances are unusual and I think that there is sufficient evidence to warrant the conclusion that the deceased's relationship with the plaintiff was not solely that of prostitute/client. In some respects she appears to have been his mistress but since he was not married, or in a de facto relationship with anyone else, he was willing to be seen with her in public places and to take her to Mr Britton's home for dinner for example and pay for her dental work. He contributed to the rental of the Kirribilli apartment and paid for its furnishing (which incidentally the plaintiff still retains in storage after she terminated the lease). He did tell Mr Britton however that "he wouldn't have any of the ladies living in his house permanently" (see T193.15) which is consistent with what he has told Mr Williams after the termination of his earlier marriage, and with his statement to Ms Duncan that he had no commitment "to these women". The provision to the plaintiff of the dress ring seems to indicate that he had regard for her and wished to continue to have a relationship for some time but he engaged in liaisons with other women in the second period in which he gave to at least one of those other women (Ms Christos) a feeling that she, and not the plaintiff, was favoured (see Exh A1 p 23, para 65 and p 35, para 91 of the plaintiff's first affidavit).
I set out the factors which lead me to conclude that the relationship in the second period ought not be characterised as a de facto one:
(a) The plaintiff knew that he was having relationships with other women and never asked him why (T90.11-91.20).
(b) Although he gave her a dress ring he never described it as an engagement ring and never discussed marriage with her or the nature of the relationship at any time.
(c) In none of her affidavits did she assert that she loved the deceased and the first time the word was used was in cross-examination (T116.20-32). She does not record him telling her during the second period of his feelings for her, or of her telling him of her feelings for him.
(d) She valued her independence, and was not keen on ties.
(e) She said she did not wish the deceased to buy her items that benefited her exclusively (T105.32-41), although I should note that he did pay for her dental work on her evidence.
(f) Her relationship with the deceased in the second period was such that she was able, if she wanted to, to work at the Penthouse (T106-T107). I accept that one of the reasons she may have worked at the Penthouse was because she was angry with the deceased over his having relationships with other women but it seems from her evidence that there were other occasions on which she worked at the Penthouse.
(g) She did not feel herself a part of the deceased's family and did not want to be part of a family (of anyone).
(h) She agreed that whilst he was alive and even shortly after the deceased's death she would not have regarded herself as his de facto partner or de facto: T168.44-169.24.
(i) The deceased told Mr Williams after his marriage to Wendy had failed that "in the future he would have girlfriends and dams and fillies would be his major interest". See T275.50-276.4.
(j) For the financial year ending 30 June 2006 she declared an income of $45,000 which, on her evidence, was money given to her by the deceased: T219.32-219.48, see also her evidence at T151-152, which is consistent with her understanding that the basis on which she was receiving money from the deceased was as a client not as a person in a romantic relationship. Incidentally in the light of this evidence I do not think Mr Ellison is precluded (as Mr Drummond submitted at T331-332) from putting the submission that the plaintiff was earning a fee for a service.
(k) There was no intermingling of accounts of the deceased with those of the plaintiff.
(l) The plaintiff performed no housework or domestic duties other than sharing the cooking of a meal occasionally for herself and the deceased.
(m) There was no joint ownership or acquisition of assets.
(n) There were no children.
(o) Although the deceased did not hide the plaintiff from his friends he never described her as his wife, partner or de facto (or even girlfriend) (see Exh A1 p 30, para 81 where according to the plaintiff the deceased introduced her to his friends at the races as his "good friend").
(p) Even accepting that the plaintiff received substantial amounts of money from the deceased during the second period in my view she was not dependent on him. She was able at any time (as she did from time to time) to resume her work as a prostitute and indeed she regarded his payments to her as income even declaring it at least for the period ending 30 June 2006. If her return for 2006 is accurate it reveals an average payment of less than $1000 a week.
(q) In September 2006, shortly after the documents incident, the plaintiff went to Perth and commenced working at Club 316 (Exh A1 p 40, para 104). The complete lack of discussion between her and the deceased about their future together even when he had given her the ring as a present and the abrupt way in which he ended the relationship when Ms Christos brought him adverse publicity to the Einfeld case confirm the impermanence of the relationship between the plaintiff and the deceased, so far as he was concerned and her return to the Penthouse when she was angry with the deceased (see T107.22) seems to point in that direction too.
(r) When (p) and (q) are considered together and with the deceased's express desire to avoid having any of the ladies living with him, the relationship appears to be one more akin to that of a paid mistress than a de facto relationship of the type contemplated in the Act.
I do not accept that the evidence supports the plaintiff's contention that the deceased ended his relationship with the plaintiff in 2006 "to protect the plaintiff'. In my view the inference to be drawn is that he did want the relationship to end and that, in accordance with those wishes and his position, it did end. It may be that the plaintiff attempted over the next four years (and before the third period) to contact him but it is clear that that was not reciprocated in any fashion and I am not confident in accepting the plaintiff's assertions about the extent to which she attempted to see him or in accepting Mr Drummond's contention (see T345) that she still "held a flame" for him.
I find that in the period August 2006 to November 2010 the deceased wanted nothing to do with the plaintiff and that whatever relationship they had had in the second period was well and truly over.
Wholly or partly dependent on the testator at any particular time
It is clear that the only period in which the plaintiff could possibly meet this requirement is between 2001 and 2006, when the deceased provided, on the plaintiff's case, between $500-$1000 a week for her upkeep, including rental at the Kirribilli apartment. As I have said it is difficult to have any confidence about what was paid to the plaintiff but there can be no doubt that the deceased did assist her with her rent of the Kirribilli apartment for much of the second period. I think, as she declared in her tax return for at least one of the years in the second period, she was during the second period in effect receiving income from the deceased in return for sexual favours, and was not a member of his household.
Paras [46] and [47](d), (e), (f), (g), (j), (k), (l), (m), (p), (q) and (r) are also relevant to this issue and I have taken those matters into account. The plaintiff was free and able to resume her work whether at the Penthouse, or for example in Perth, whenever she chose to do so, which is precisely what she did.
I do not think that the evidence establishes that she was a member of the deceased's household. He set her up in a separate apartment and did not want anyone living at Fairlight on a permanent basis as he told Mr Britton. I accept that the plaintiff did on occasions stay over at Fairlight but the fact that throughout the period he helped find the separate apartment and their lack of any discussion of her moving in with him rather tells against her being a member of the same household. The cessation of the relationship without any arrangement by the deceased to maintain the Kirribilli apartment, assist with its rental, and the plaintiff's continued maintenance of the apartment after their parting company in 2006 without any such assistance from the deceased reinforces the conclusion to which I have come.
Close personal relationship
As Mr Drummond pointed out, to establish a close personal relationship the plaintiff must establish first that during the relevant period they were living together and second that the plaintiff was providing domestic support and personal care during that period.
It has been held that to satisfy the criterion it is not necessary that the parties lived together "full time" but it depends on "an evaluation of the nature and extent to which they share a household" see Hayes v Marquis per McColl JA at [78]-[79] and see Barlevy v Nadolski [2011] NSWSC 129 per Slattery J at [25]. It is clear that close personal relationship is a separate category to a de facto relationship and hence that the test is not as demanding as is required for a de facto relationship.
I accept that the plaintiff did provide domestic support to the deceased in the period November 2010 to his death. I accept that she provided personal care in the period late November 2010 to at least December 2010. What I am not satisfied of is that the parties were "living together" in that period or that she was providing personal care to the deceased after January 2011. The plaintiff was living and working in Perth - she spent 54 days in Sydney at Fairlight out of a total of 458. Of these 458 days she spent 51 in Sydney but not always at Fairlight. From 20 November 2010 to 6 July 2011 she did not stay at Fairlight and in April, May and June 2011 she did not visit Sydney at all, and she did not stay any time at Fairlight in August, September or November 2011 (or even come to Sydney).
I have earlier referred to the fact that she had asked the defendant's permission to stay at Fairlight, that she slept on the sofa on many of the nights she was at Fairlight and always in a separate room, and even accepting that the plaintiff stayed at Fairlight on many of the occasions she was in Sydney, I am not persuaded that the plaintiff and the deceased were "living together" in the usual sense of those words in the third period.
The claim for the cost of a Lower North Shore apartment
In light of my conclusion that the conditions for s 57(1)(b), (e) and (f) have not been met I do not have to consider the question of whether the circumstances warrant the making of a provision out of the estate, but I will comment on one matter relevant to that inquiry should it have been necessary to embark on it.
Mr Drummond sought to use the home unit inspections in the second period and the rental of the Kirribilli apartment as supporting his contention that the plaintiff, if accepted as an eligible person as a de facto or in a close personal relationship, should be given the value of a two or three bedroom apartment in the Lower North Shore. Even assuming that the plaintiff was in a de facto relationship or in a close personal relationship with the deceased at his death I do not see that relationship as providing a foundation for a claim to the cost of an apartment in one of Australia's most expensive areas. I do not think that the deceased could reasonably be expected to have provided such accommodation for her in his will. Until his death he provided no money or benefit to her other than the permission to stay at Fairlight when she wanted to (with her assisting him to some degree). He did not in the second period buy her an apartment in Kirribilli but rather assisted her to pay rent for the Kirribilli apartment whilst she was, and only for so long as she was, his mistress. Further, the plaintiff hails from Melbourne, has no relatives in Sydney and owns an investment property (albeit modest) in a town in an area of Victoria, which she liked earlier in her life and which she had bought as a possible lifestyle choice: T149. Whatever provision for maintenance, advancement and education in life might be appropriate if, contrary to my conclusion the plaintiff were an eligible person, it would not, in my view, include the cost of an apartment in Sydney
Conclusion
It follows that the plaintiff is not an eligible person within the meaning of s 57 of the Act, is not entitled to an order under s 59 of the Act and her summons should be dismissed. I will hear counsel on the issue of costs.
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Decision last updated: 24 July 2014
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