Andrews v Howard

[1999] NSWCA 409

CITATION:	ANDREWS v HOWARD [1999] NSWCA 409
FILE NUMBER(S):	CA 40597/98
HEARING DATE(S):	13 October 1999
JUDGMENT DATE:	5 November 1999
PARTIES :	Victor Norman Andrews - Appellant Matthew David Howard - Respondent
JUDGMENT OF:	Sheller JA at 1; Beazley JA at 16; Fitzgerald JA at 17

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	1073/97
LOWER COURT JUDICIAL OFFICER:	Master Macready

COUNSEL:	D E Baran - Appellant S Winters - Respondent
SOLICITORS:	Woodward, Wickes & Co - Appellant Fisher Grogan - Respondent
CATCHWORDS:	FAMILY PROVISION ACT 1982 - homosexual partners - whether elibigle person pursuant to s6 - whether partner was dependent upon deceased - whether awardt was so excessive as to demonstrate error
ACTS CITED:	Family Provision Act 1982
CASES CITED:	Golosky v Golosky (unreported) 5 October 1993, Butterworths Unreported Judgments House v The King (1936) 55 CLR 499 Petrolhilos v Hunter (1991) 25 NSWLR 343 Singer v Berghouse (1994) 181 CLR 201
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40597/98
ED 1073/97

SHELLER JA
BEAZLEY JA
FITZGERALD JA

ANDREWS v HOWARD

The respondent was the homosexual partner of Maurice Andrews, who died intestate. The respondent made an application under the Family Provision Act 1982, claiming to be an eligible person pursuant to s6 of that Act. The Master found that there was an emotional and part-economic dependence by the respondent on the deceased and made an order in favour of the respondent.

The appellant, who was the administrator of the estate, appealed from this decision on the ground that the respondent was not an eligible person or alternatively, that if he was an eligible person, that the award was so excessive as to demonstrate error.
Held:
By Sheller JA, Beazley and Fitzgerald JJA agreeing:
(1) The question of dependency was not to be decided by reference to what the parties might have done. It was a matter of what they chose to do and in fact did. Hence it was of no consequence that the deceased was able to move out and live elsewhere if he had wished.
(2) The definition of “eligible person” did not stipulate any particular dependence, such as financial or economic dependence. It was clearly open to the Master to conclude that there was a part-economic dependence. Petrolhilos v Hunter (1991) 25 NSWLR 343 referred to.
(3) This Court would not interfere with an award unless it was shown that the award was an entirely erroneous estimate of what, in the circumstances, was an adequate provision for the respondent’s proper maintenance. Singer v Berghouse (1994) 181 CLR 201 applied.
(4) The award was not shown to be so excessive as to conclude that it was arrived at as a result of the erroneous application of principle, bearing in mind the relationship the respondent had with the deceased; that he lived with the deceased rent free for 10 years; that the relationship was a close and loving one; that throughout this period the respondent contributed to their living joint expenses and that there was no competing claim on the deceased’s bounty.

Acts:
Family Provision Act 1982

Cases:
Golosky v Golosky (unreported) 5 October 1993, Butterworths Unreported Judgments
House v The King (1936) 55 CLR 499
Petrolhilos v Hunter (1991) 25 NSWLR 343
Singer v Berghouse (1994) 181 CLR 201

ORDERS

Appeal dismissed with costs.

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THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40597/98
ED 1073/97

SHELLER JA
BEAZLEY JA
FITZGERALD JA

Friday, 5 November 1999

ANDREWS v HOWARD

JUDGMENT

1    SHELLER JA: Maurice Roy Andrews (the deceased) died intestate on 13 April 1996, aged 48. He was survived by a brother, Victor Norman Andrews, who became the administrator of his estate and was sole beneficiary in his intestacy, and a step-brother, Bruce John Andrews. Matthew David Howard (the plaintiff) was the homosexual partner of the deceased for the 14 years before the deceased’s death.

2    The plaintiff made an application under the Family Provision Act 1982 (the Act) claiming to be an “eligible person” in relation to the deceased, that is to say, a person who was, at any particular time, wholly or partly dependent upon the deceased and at that particular time or any other time, a member of a household of which the deceased was a member; see the definition of “eligible person” in s6 of the Act, para (d).

3    On 31 July 1998 Master Macready, who heard the application, found that “there clearly was an emotional and a part-economic dependence by the plaintiff upon the deceased” and made an order in favour of the plaintiff.

4    At the date of the hearing the assets in the estate consisted of:

Cash $15,058
Shares $11,925
Interest in the estate of the late Mrs G E
Andrews (the deceased’s mother who
had died on 17 February 1996) $131,642
Motor vehicle -
Contents of the home unit $18,000
Property at 3/5 New Beach Road, Darling Point $325,000

5    In addition there were proceeds from two superannuation insurances amounting to $18,543 and $6,191 for which applications had been made both by the plaintiff and Victor Norman Andrews, the defendant in the proceedings. The plaintiff had lived in the unit with the deceased for a period of 12 years up until the deceased’s death and had continued to live there after his death.

6    The orders Master Macready made were:

“1. That the plaintiff receive out of the estate of the deceased:
(a) a bequest to the property 5/3 New Beach Road, Darling Point with the furniture contained therein and
(b) a legacy of $25,000.
2. The plaintiff’s costs on a party and party basis and the defendant’s costs on a common fund basis be retained or paid out of the estate of the deceased.”

7    The defendant appealed from this decision on a number of grounds which relevantly can be gathered under two heads:

1. That it was not open to the Master to find that the plaintiff was, at any particular time, wholly or partly dependent upon the deceased and hence not open to hold that he was an “eligible person”.
2. That if the plaintiff was an eligible person the award made in his favour was so excessive as to demonstrate error and should be set aside.

8    Under the first head the appellant submitted that “emotional” dependency alone was not enough to satisfy the requirements of the definition and that some “financial” dependence had to be demonstrated. The appellant further submitted that there was no evidence upon the basis of which it was open to the Master to conclude that there was “a part-economic dependence by the plaintiff upon the deceased”. To make good these points the appellant referred to evidence given by the plaintiff about his income and periods of unemployment when he co-habited with the deceased. This it was suggested showed that he was independent, able to meet the cost of his own needs out of his income and find his own accommodation away from the deceased’s unit.

9    Master Macready carefully evaluated the evidence. With due respect to the appellant’s submissions I am not persuaded that any finding Master Macready made about the financial situation and relationship of and between the plaintiff and the deceased was not open. In the course of his reasons for judgment the Master said:

“The question whether or not there was rent to be paid as part of the arrangement was addressed in evidence. It is clear that the plaintiff denied that there was an arrangement for rent and merely that he wished to contribute to expenses to the extent that he could. There is nothing that the Executors [sic] could suggest to indicate that there may have been regular payments on account of rent nor was any such rent disclosed in the deceased’s tax returns. In these circumstances it seems to me that rent, if that word was used, at all in the conversation was used in the sense of a contribution to expenses.
A consideration of the evidence overall would tend to indicate that the deceased earned more than the plaintiff, that the plaintiff was out of work for periods of time and that although the plaintiff tried to contribute equally there were occasions when he could not and thus he was dependent upon his partner, the deceased. As I have said, it is not to the point that each of them might have been able to live their own separate lives. It is more a matter of how they chose to live their lives and in the present case there clearly was an emotional and part economic dependence by the plaintiff upon the deceased. In these circumstances I am satisfied that the plaintiff is an eligible person.”

10    About this the appellant submitted that a person is not dependent upon a deceased if he was able, if he wished, to move out and live elsewhere. However, with all respect, I agree with the Master that it is not a matter of what the parties might have done. It is a matter of what they chose to do and did. No suggestion was made that there was not, as the Master said, “a close personal and loving relationship and in this sense …… clearly dependence upon each other”. The definition of “eligible person” does not stipulate any particular dependence, such as a financial or economic dependence; compare Petrolhilos v Hunter (1991) 25 NSWLR 343 at 346. But however that may be, I am not persuaded that it was not clearly open to the Master to conclude for the reasons he did that there was also a part-economic dependence. In my opinion the appeal against the finding that the plaintiff was an eligible person within the meaning of s6 of the Act should not be disturbed.

11    This brings me to the second head of the appeal. On its face the order the Master made was in the circumstances generous. However, this Court will not interfere unless the appellant has shown that the Master made “an entirely erroneous estimate of what, in the circumstances, was an adequate provision for the [respondent’s] proper maintenance, education and advancement in life”; Singer v Berghouse (1994) 181 CLR 201 at 212.

12    The Master observed that the defendant was married and had two children, a son born on 16 May 1978 and a daughter on 7 March 1980. The defendant had not advanced his financial situation or placed it before the Court for consideration. The Master said “……accordingly, the Court can assume that he does not wish the Court to take into account his financial situation when considering the plaintiff’s application.” In short, there was no evidence of any competing claim by any eligible person that that person had been left without inadequate provision for his or her proper maintenance out of the deceased’s estate. Having reviewed the evidence and the case law the Master said:

“As I have mentioned before the defendant does not suggest that one should have a different approach depending upon whether the relationship is heterosexual or homosexual. In the present case the relationship is not of extensive duration and there is no doubt that the plaintiff has not helped to build up the estate of the deceased. The estate was built up by the deceased in periods prior to his association with Matthew and through the deceased’s own care and management of that estate. In addition part of it relates to assets which came from his mother. In ordinary circumstances it would be perhaps unusual to give the whole of the home to the plaintiff but there are some considerations which tend towards this. One is that the plaintiff has lived there for the last 12 years and the second and probably more important consideration is that of the competing claim. One has the claim of a brother who had a close association with his sibling over a lifetime. However, apparently that brother is in a reasonable financial situation. In those circumstances it seems appropriate that there should be a provision for the plaintiff of the unit of the deceased. I think it is inappropriate that the provision should be any greater than this other than to provide for a sum to cover the outstanding levies and the possible levy for underpinning.
In these circumstances the appropriate orders are that the plaintiff receive a bequest of the unit at 5/3 New Beach Road, Darling Point with its furniture and a legacy of $25,000.”

13    The appellant’s submissions were to the effect that the orders made were grossly excessive and the case one in which, although the nature of the error might not be discoverable, a substantial wrong had in fact occurred; compare House v The King (1936) 55 CLR 499 at 505. The appellant accepted that if the plaintiff was an eligible person, some order in his favour was appropriate. It was said that “a mere right of residence” would be unsatisfactory in part at least for some of the reasons that were discussed by this Court in Golosky v Golosky (unreported) 5 October 1993, Butterworths Unreported Judgments at 9 (d).

14    The Master found that the appellant was earning on average approximately $600 net per week and this was more than adequate to meet his expenses. “Apart from small items of personalty and a piano he had bank accounts of some $800. He owed Ms Carolyn Smith the sum of $5,000 which she had lent him for living and legal expenses and $800 on his Grace Bros account.” Apparently towards the end of the relationship arguments took place and it may have been that the deceased was “less than happy with” the plaintiff. Evidence was given by several witnesses about the deceased’s testamentary intentions and in particular an expressed intention to leave his estate away from the plaintiff and in favour of his relatives. These were all matters that the Master took into account before reaching the conclusion which I have quoted. The Master saw no reason to conclude that the plaintiff had been left without adequate provision for his education but recognised the other need that the plaintiff advanced, namely housing accommodation. This was accepted as a need which the plaintiff could meet from his own resources only by renting accommodation, possibly shared accommodation.

15    Bearing in mind that the relationship between the plaintiff and the deceased up to the time when the deceased died and over a period of 10 years provided him with accommodation which was rent free, that that relationship was found to be a close personal and loving one, that throughout this period the plaintiff contributed to the extent he was able to the living expenses of both himself and the deceased and that there is no competing claim on the deceased’s bounty, I am not persuaded that the orders that the Master made have been shown to be excessive to the point that the Court must conclude that they have been arrived at as a result of the erroneous application of principle. In my opinion, the appeal should be dismissed with costs.

16    BEAZLEY JA: I agree with Sheller JA.

17    FITZGERALD JA: I agree with Sheller JA.

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