Bailey v Palombo

[2020] NSWSC 1209

Supreme Court

New South Wales

Medium Neutral Citation:

Bailey v Palombo [2020] NSWSC 1209

Hearing dates:

29 – 30 June, 1 July 2020

Date of orders:

9 September 2020

Decision date:

09 September 2020

Jurisdiction:

Equity

Before:

Hallen J

Decision:

The Court directs the parties to provide to the Court, within 14 days, in hard and soft copy, Short Minutes of Order that reflect these reasons.

Catchwords:

SUCCESSION – Administration of estates – Persons entitled on intestacy – Distribution order – Multiple spouses – Where the deceased died intestate – The Plaintiff asserts that she was a “spouse” of the deceased upon the basis that she was in a de facto relationship with him that had been in existence for a continuous period of two years (or more) – Dispute about the nature of the relationship – Competing claim by the Defendant who was a de jure wife of the deceased although they had been separated for some years before his death – If more than one spouse, then question arises as to how the estate of the intestate should be distributed as no distribution agreement entered into between the spouses – Order sought that the property of the intestate should be distributed between the spouses in a way that the Court considers just and equitable pursuant to s 126 of the Succession Act 2006 (NSW) – Meaning of “just and equitable” – Further question arises, if more than one spouse, to whom should grant of administration on intestacy be made – Parties agree to appoint an independent person to be the administrator of the estate of the deceased, but before the appointment is made, they wish to consider whether grant should be made to one, or other, of them.

WORDS AND PHRASES – “Just and equitable” – Succession Act 2006 (NSW), s 126(3)

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Evidence Act 1995 (NSW), s 140

Family Law Act 1975 (Cth), ss 72, 78, 79, 90C, 90SE, 90SM

Interpretation Act 1987 (NSW), s 21C

Marriage Act 1961 (Cth), Pt VA

NSW Trustee and Guardian Act 2009 (NSW), s 23

Probate and Administration Act 1898 (NSW), ss 63, 74

Property (Relationships) Act 1984 (NSW), s 4

Real Property Act 1900 (NSW), s 97

Relationships Register Act 2010 (NSW)

Succession Act 1981 (Qld), s 36

Succession Act 2006 (NSW), ss 59, 101, 102, 103, 104, 105, 112, 123, 125, 126, Ch 4

Succession Amendment (Intestacy) Act 2009 (NSW)

Supreme Court Act 1970 (NSW), s 75

Uniform Civil Procedure Rules 2005 (NSW), rr 2.1, 29.5

Cases Cited:

Alan Yazbek v Ghosn Yazbek (No 2) [2012] NSWSC 783

Bar-Mordecai v Hillston [2004] NSWCA 65

Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9

Bellman v Peters [2020] VSCA 143

Bezjak v Wyatt [2018] NSWSC 199

Bourdales v Carroll; Estate of Diane Holbrook (2007) 1 ASTLR 202; [2007] NSWSC 1057

Brownell v Robinson [2017] TASFC 11

Challenge Bank Ltd v Mailman (1993) 17 BPR 33,679; [1993] NSWCA 54

Chow Kwok Chuen v Chow Kwok Chi [2008] SGCA 37

Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519

Clarence City Council v Commonwealth of Australia [2020] FCAFC 134

Crawford v Davidson-Crawford [2019] NSWSC 728

Dakin v Sansbury [2010] FMCAfam 628

Dion v Rieser [2010] NSWSC 50

Dwyer v Kaljo (1992) 27 NSWLR 728

Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273

Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324

Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477

FO v HAF [2007] 2 Qd R 138; [2006] QCA 555

Forster v Jododex Australia Pty Limited (1972) 127 CLR 421; [1972] HCA 61

Hayes v Marquis [2008] NSWCA 10

In re Blériot Manufacturing Aircraft Company (Limited) (1916) 32 TLR 253

In the Goods of William Loveday [1900] P 154

In the Marriage of Rolfe (1977) 25 ALR 217; (1979) ¶FLC 90-629

In the matter of the Estate of Peter Douglas Sigg, deceased [2009] VSC 47

Indjic v Stojanovic [2020] NSWSC 470

Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep)

Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

KQ v HAE [2007] 2 Qd R 32; [2006] QCA 489

Light v Anderson (Court of Appeal (NSW), Handley JA, 4 August 1992, unrep)

Lynam v Director General of Social Security (1983) 52 ALR 128

Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21

Moby v Schulter (2010) FLC ¶93-447; [2010] FamCA 748

Na v Tiu (No 2) [2017] FamCAFC 269

Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286

Paino v Paino (2008) 40 Fam LR 96; [2008] NSWCA 276

Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520

Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9

Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8

Piras v Egan [2008] NSWCA 59

Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26

Ragland v Ballock [2020] FCCA 1685

Re Estate Jerrard, deceased (2018) 97 NSWLR 1106; [2018] NSWSC 781

Re Estate Miruzzi, deceased [2018] NSWSC 1899

Re Estate Wilson, Deceased (2017) 93 NSWLR 119; [2017] NSWSC 1

Reavill Farm Pty Limited v AR Mortgages Pty Ltd (No 3) [2020] NSWSC 740

Robson v Quijarro [2009] NSWCA 365

Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438

Sadiq v NSW Trustee & Guardian [2015] NSWSC 716

Sadiq v NSW Trustee and Guardian [2016] NSWCA 59

Schmidt v Malcolm [2016] WASC 209

Scragg v Scott [2006] NZFLR 1076

Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677

Smith v NSW Bar Association (1992) 176 CLR 256; [1992] HCA 36

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Sullman v Sullman [2002] NSWSC 169

Taisha v Peng (2012) 296 FLR 350; [2012] FamCA 385

Talga Ltd v MBC International Limited (1976) 133 CLR 622; [1976] HCA 22

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818

Ye v Fung [2006] NSWSC 243

Yesilhat v Calokerinos [2015] NSWSC 1028

Zetting v Müller [2017] NSWSC 659

Texts Cited:

G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis)

P W Young, Declaratory Orders (2nd ed, 1984 Butterworths)

Category:

Principal judgment

Parties:

Jacqueline Bailey (Plaintiff)
Gail Charlotte Palombo (Defendant)

Representation:

Counsel:
D M Flaherty (Plaintiff)
R W Tregenza (Defendant)

Solicitors:
Caldwell Martin Cox (Plaintiff)
Bell Lawyers (Defendant)

File Number(s):

2019/00215421

Judgment

Introduction

1. HIS HONOUR: In this case, the principal, although not the sole, issue for determination is whether Jacqueline Bailey, the Plaintiff, was the “spouse” of Brian Palombo (the deceased) as at 11 October 2018, the date of his death. If she was, it is then for the Court to determine how the deceased’s estate is to be distributed, and also to whom administration of the deceased’s intestate estate should be granted.

2. In this case, some of the persons involved share the same surname. As such, where it is necessary to do so, and without intending any disrespect, I shall refer to persons, other than the parties, by first name to avoid confusion.

3. By amended Summons filed on 20 May 2020, the Plaintiff sought the following relief:

1. A Declaration that the Plaintiff was the ‘spouse’ of the late Brian Palombo deceased (‘the Deceased’) within the meaning of Sections 104 and 105 of the Succession Act 2006 (‘the SA’) immediately before the Deceased’s death.

2. A Declaration that the Deceased died intestate on 11 October 2018.

3. A Declaration that the Plaintiff and Defendant are entitled to the whole of the Deceased’s estate in equal shares pursuant to the provisions of s 123 and/or s 125 of the Succession Act 2006.

4. An order that the NSW Trustee and Guardian be appointed as administrator of the estate of the Deceased.

5. An Order that an administration bond be dispensed with.

6. An order that the matter be referred to the Registrar to complete the grant.

7. Costs.”

   4. The Defendant named in the amended Summons is Gail Charlotte Palombo. There is no dispute that she and the deceased were married to each other at the date of the deceased’s death but that they had been separated, and living apart, from about July 2010.

   5. There were three children of the marriage of the deceased and the Defendant to whom I shall refer later in these reasons. Each has given evidence in these proceedings.

   6. By Cross-Summons filed on 20 August 2019, the Defendant sought the following relief:

“1. A declaration that Brian Palombo, late of St. Clair in the state of New South Wales, deceased died intestate on 11 October 2018.

2. An order that administration of the estate of the deceased be granted to the cross claimant.

3. An order that, in the event that the plaintiff/cross defendant was a spouse of the deceased at the time of his death (which is not otherwise admitted) that pursuant to section 126 of the Succession Act 2006 that a Distribution Order be made in relation to the estate of the deceased in relation to the defendant/cross claimant and the plaintiff/cross defendant

4. An order that the administration bond be dispensed with.

5. An order that the matter be referred to the Registrar to complete the grant.

6. Costs.”

7. In the event that there is more than one spouse, both the Plaintiff and the Defendant have, effectively, applied for a distribution order within the meaning of that term in the Succession Act 2006 (NSW) (the Act). Thus, each of the parties seeks not only declaratory orders but also other relief consequent upon the making of those orders.

8. Declaratory relief is addressed in s 75 of the Supreme Court Act1970 (NSW). It provides a wide power to the Court to make a declaration.

9. As has recently been written by the Full Court of the Federal Court (Jagot, Kerr and Anderson JJ) in Clarence City Council v Commonwealth of Australia [2020] FCAFC 134 at [58], [67]:

“Broadly defined, a declaratory judgment is ‘a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs’: Lord Woolf and Woolf J, Zamir & Woolf’s The Declaratory Judgment (Sweet & Maxwell, 4th ed, 2011) (Zamir & Woolf’s The Declaratory Judgment) p 1. Such relief ‘conclusively’ establishes the situation it declares to exist between the parties: Parramatta City Council v Sandell [1973] 1 NSWLR 151 at 167 per Hutley JA.

…

An applicant for declaratory relief must also have standing (or locus standi), which is the metaphor adopted to describe the interest required to obtain relief: Allan v Transurban City Link Ltd [2001] HCA 58; 208 CLR 167 at [15] per Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ. Furthermore, even if a party has standing, there remains the residual question as to whether the Court ought award declaratory relief in the circumstances of the particular case.”

10. As written, a declaratory order is a discretionary remedy. Before a declaration is made, the Court, ordinarily, needs to be satisfied of the factual, and legal, basis for the declaration sought. The majority of the High Court in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 359 [56]; [1999] HCA 9 at [56], stated:

“It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.”

11. In Crawford v Davidson-Crawford [2019] NSWSC 728, Ward CJ in Eq wrote, at [32]:

“In order to obtain a declaration, a party must satisfy the requirements articulated in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582; [1992] HCA 10 per Mason CJ, Dawson, Toohey and Gaudron JJ:, namely that: there be a controversy between the parties for determination and not abstract or hypothetical questions; the person seeking relief must have a ‘real interest’; and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’. Their Honours also stated (at 583) that ‘where a person’s rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accord natural justice in the conduct of the inquiry’.”

12. The Court should, usually, be satisfied that there is a proper contradictor, being “someone presently existing who has a true interest to oppose the declaration sought”: Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Limited [1921] 2 AC 438 at 448 (Lord Dunedin), quoted with approval by Gibbs J (as his Honour then was) (McTiernan, Walsh, Stephen and Mason JJ agreeing on this issue) in Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437–438; [1972] HCA 61; P W Young, Declaratory Orders (2nd ed, 1984, Butterworths) at 15–16 [210].

13. (In Zetting v Müller [2017] NSWSC 659, at [13], Parker J pointed out that there was “room for debate about whether [the requirement for a proper contradictor] is an essential requirement before a declaration can be made, or is merely a matter of discretion: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies at [19-115] to [19-125]”, and that Zetting v Müller was referred to by Bell P, with apparent approval, in Church of the Foursquare Gospel (Australia) Ltd v New Hope Church Swansea Inc [2019] NSWSC 519 at [16].)

14. It is unnecessary to enter the debate, because, in this case, there is a proper contradictor in respect of the declarations sought by each party.

15. If the relationship of the Plaintiff and the deceased is established, the terms of the declaration sought by her will fit, satisfactorily, with the matters that are affecting the dispute between the parties: Challenge Bank Ltd v Mailman (1993) 17 BPR 33,679 at 33,689–33,690; [1993] NSWCA 54 at 11 (Mahoney JA); Reavill Farm Pty Limited v AR Mortgages Pty Ltd (No 3) [2020] NSWSC 740 at [28] (Cavanagh J). Such a declaration will constitute a conclusive, or final, decision, based on a concrete and established situation and will quell the controversy between the parties: Bass v Permanent Trustee Company Limited at [45]–[49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).

16. In addition, the declaration sought will be appropriate and it will have practical utility: see, for example, Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286 at 307 (Barwick CJ and Jacobs J); [1974] HCA 18. As Kirby P (as his Honour then was) wrote in Challenge Bank Ltd v Mailman at 33,686; 7–8:

“The court should not hold back from resolving the contest between the parties which has been fully argued ... I am inclined to consider that there are good practical reasons for giving effect to that resolution in the form of an appropriately worded declaration. Courts, in cases of this kind, should assist parties and not frustrate them with procedural excuses.”

17. There is evidence of the unsuccessful searches made to locate a Will of the deceased: Affidavit, Gail Charlotte Palombo, 21 August 2019 at par 49; Affidavit, Gail Charlotte Palombo, 25 June 2020 at pars 2–3. There is no controversy about the deceased having died intestate as the Plaintiff, the Defendant, and the deceased’s children, all agree that he did. Thus, because there is no real question involved, and the declaratory relief must be directed to the determination of a legal controversy, any grant of administration will be upon the basis that the deceased died intestate, and there will be no need for a separate declaration.

18. There has been no grant of administration of the deceased’s estate as the parties are in dispute about the identity of the person, or entity, to whom, or to which, it ought to be granted. The Court has power to “grant” administration on intestacy, under s 63 of the Probate and Administration Act 1898 (NSW). This section identifies the persons, not being minors, to whom administration may be granted, including “(a) the spouse of the deceased”. However, s 63 continues:

… if there be no such person or no such person within the jurisdiction:

(i) who is, of the opinion of the Court, fit to be so trusted, or

(ii) who, upon being required in accordance with the rules, or as the Court may direct, to apply for administration, complies with the requirement or direction,

then to:

(d) any person, whether a creditor or not of the deceased, that the Court thinks fit.

19. Section 74 of the Probate and Administration Act provides that the Court may, in any case where a person dies intestate, and if it thinks it necessary or convenient, appoint some person to be the administrator of the estate of the deceased, or of any part thereof, upon the appointed person giving such security (if any) as the Court directs, and every such administration may be limited as the Court thinks fit.

20. The guiding principles that apply to such a grant are clear. When the Court is considering whether to grant administration of an estate, the appointment must be one which advances the real object of administration, that is, the due and proper administration of the estate in the interests of the persons beneficially entitled thereto: In the Goods of William Loveday [1900] P 154 at 156 (Jeune P); Bourdales v Carroll; Estate of Diane Holbrook (2007) 1 ASTLR 202 at 203 [4]; [2007] NSWSC 1057 at [4] (Young CJ in Eq); Alan Yazbek v Ghosn Yazbek(No 2) [2012] NSWSC 783 at [19] (Slattery J).

21. The Court may grant administration of any estate to the NSW Trustee and Guardian: see, for example, Peipi v Peipi as Administrator of the Estate of the late Ashoor Hilaney [2013] NSWSC 1520 at [153]–[157] (Slattery J). Alternatively, s 23 of the NSW Trustee and Guardian Act 2009 (NSW), provides:

(1) The NSW Trustee is, on application, entitled as of right to a grant of administration of the estate of a person who died intestate leaving property in New South Wales if—

(a) letters of administration of the deceased person’s estate have not been granted, or

(b) letters of administration of the estate granted to a person other than the NSW Trustee are revoked, or

(c) a person granted letters of administration of the estate dies without completing administration of the estate.

(2) The NSW Trustee is not required to provide, and the Supreme Court may not require the provision of, any citation or consent before administration of the estate of the deceased person is granted.

(3) However, if the NSW Trustee and any other person severally apply for the administration of the deceased person’s estate, the Supreme Court may grant administration of the estate to the NSW Trustee or other person, as the Court thinks fit.

22. In a pre-trial directions hearing, conducted on 30 March 2020, I suggested that if the Plaintiff were successful, the parties should consider the appointment of an independent administrator, as it was clear a grant to one, or both, of them would be unlikely to suit either, and could lead to further disputes about the administration of the estate, which disputes would not be in their best interests. It seemed that there were likely to be strongly competing contentions between the parties as to the way the estate of the deceased should be administered, with the result that it might be cheaper, in the long run, to have an independent person administer the estate.

23. At the commencement of the hearing, when I raised the topic again, apparently, there had been a misunderstanding between the legal representatives prior to the hearing about this aspect. However, on the second day of the hearing, the parties agreed that Mr D Browne, a solicitor who is an accredited specialist in wills and estates, should be appointed if the Court found that there was more than one spouse and thought it necessary, or convenient, to appoint an independent administrator. Mr Browne has provided his written consent to being appointed: Ex SAL2.

24. On the third day of the hearing, during the course of submissions, both counsel requested that the Court should allow the parties the opportunity to consider whether it would be necessary to have an independent person appointed, if a distribution order were made, and when the nature of that order is known. In the circumstances, I shall abide this request.

22. Finally, by way of introduction, it is to be noted that neither party, nor any of the children of the deceased, has made a claim for a family provision order pursuant to s 59 of the Act.

Post Hearing Development

26. Following the conclusion of the hearing, counsel for the Defendant, Mr R W Tregenza, sent an email dated 6 July 2020 to the Court (and to Mr D M Flaherty, counsel for the Plaintiff) in the following terms:

“I have informed counsel for the plaintiff, Mr Flaherty, that the defendant received a significant insurance payout consequent on the death of the deceased.

If convenient, could His Honour relist the matter on a day this week on or after Wednesday (allowing a day or so for the preparation of an affidavit by the defendant and for Mr Flaherty not being available tomorrow) raising the matter before the Court.

Mr. Flaherty consents to this course. I am endeavouring to copy Mr Flaherty into this email, but as I am doing so on my phone from Penrith, if I do not do so successfully then I will send him a copy.”

27. Although it was not expressed as such, I assumed that the Defendant was seeking leave to re-open her case. Such an application may be made under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 2.1 and 29.5, which provide, respectively:

2.1 Directions and orders

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

…

29.5 Conduct of trials generally

The court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.

28. Any decision to grant leave to re-open is one that involves the exercise of discretion, and the question whether the interests of justice are better served by allowing, or rejecting, the application: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478 (Clarke JA, Mahoney and Meagher JJA agreeing). The circumstances to be considered include: whether there is prejudice to the other party; the reasons why the evidence was not led in the first place; whether there had been a deliberate or tactical decision made not to call the evidence during the hearing; any delay in making the application; and the importance, relevance and probative value of the proposed new evidence to the issues in the case. See also Smith v NSW Bar Association (1992) 176 CLR 256 at 266–267; [1992] HCA 36 at [32] (Brennan, Dawson, Toohey and Gaudron JJ).

29. As is clear, in this case, the application to re-open was made shortly after the hearing was concluded, but before the delivery of judgment.

30. Because it appeared that the Plaintiff was unlikely to oppose the application, as the evidence would not cause embarrassment, or prejudice, to her, my Associate, at my request, later on 6 July 2020, sent an email to both counsel, which was in the following terms:

“This email is sent on behalf of his Honour

Dear Mr Tregenza,

His Honour has read your email. Please prepare any affidavit upon which it is intended to rely and serve it upon the Plaintiff’s legal representatives as soon as possible.

If there is no objection, the original affidavit can be electronically filed and the original made available to his Honour (to save time) and his Honour will include it as part of the affidavits read in the proceedings.

If there is any objection by the Plaintiff, a notice of motion and an affidavit in support will be required.”

31. On 16 July 2020, following another email sent, at my request, to counsel, asking what was happening, an affidavit of the Defendant, sworn 13 July 2020, was received. This was followed by an email from counsel for the Plaintiff which was in the following terms:

“Dear Associate,

I note that today the Defendant has filed (electronically) an affidavit of the Defendant sworn 13 July 20 and seeks leave to re - open her case to enable that affidavit to be read in the proceedings.

Given the content of that affidavit, my instructions are not to oppose that course but to seek leave to make further submissions regarding its content and its effect on the overall proceedings.

Could you please advise as to whether His Honour is prepared to allow the affidavit to be read and for the parties to make further submissions?”

32. In the circumstances, I was satisfied that there was no opposition to the Defendant’s application; there was no contest of fact upon the additional evidence that was sought to be relied upon; the evidence relied upon could affect the result of the case; and that it was in the interests of justice for the Court to exercise its discretion to permit the Defendant to re-open her case to allow the affidavit to be read. The request made by Mr Flaherty seemed appropriate in the event that leave was granted.

33. On 17 July 2020, I made the following orders, notations, and directions, in Chambers, which were then communicated to the legal representatives:

1. Grants leave to the Defendant to re-open her case to read an affidavit of Gail Charlotte Palombo sworn 13 July 2020.

2. Notes that the Plaintiff consents to the affidavit being read and does not wish to cross-examine the Defendant on the contents of the affidavit.

3. Notes that the affidavit forms part of the Defendant’s evidence in the proceedings.

4.    Directs that each party deliver to the Chambers of Hallen J, in hard and soft copy, any further written submissions, by 4:00 p.m. on Monday, 27 July 2020.”

34. I have read the Defendant’s affidavit and the supplementary submissions provided by counsel. I shall refer to these later in these reasons.

Issues for determination

35. Prior to the commencement of the hearing, the legal representatives agreed that there are a number of specific questions for the Court’s determination. They are:

1. Was the Plaintiff the spouse of the deceased immediately before his death within the meaning of Ch 4 of the Act? In the events that have happened, this requires the Court to determine whether the Plaintiff and the deceased were in a de facto relationship that had been in existence for a continuous period of two years.

2. If the Plaintiff is a spouse of the deceased, should there be a distribution order made by the Court pursuant to s 126 of the Act?

3. If a distribution order is made, what is the just and equitable distribution of the estate of the deceased and should it include any conditions?

4. How should the costs of the proceedings be borne?

36. (As will be read, the last issue was resolved during the course of the hearing.)

Background facts that are not in dispute

37. I turn now to a more detailed consideration of the facts of the case.

38. The legal representatives of the parties provided to the Court a document that stated some of the agreed facts. I shall next set out these, and other, facts, which I consider are either undisputed, or which I am satisfied have been established on the evidence.

1. The deceased was born in March 1963 in Scotland, United Kingdom. He died, suddenly and unexpectedly, at the age of 55 years in October 2018.

2. The deceased did not leave any Will.

3. The deceased, at the date of his death, held property in New South Wales.

4. The Defendant was born in March 1962 and is now aged 58 years.

5. The Plaintiff was born in May 1965 and is now aged 55 years.

6. The deceased married the Defendant in March 1983 in Wishaw, Scotland. The marriage is a foreign marriage that is recognised as valid pursuant to Pt VA (“Recognition of foreign marriages”) of the Marriage Act 1961 (Cth).

7. The deceased and the Defendant migrated to Australia in 1985. For a short period, after their arrival, they lived with the deceased’s parents in the parents’ home at Arundel Park Drive, St Clair (the St Clair property), a suburb of Sydney, about 39 kilometres west of the Sydney Central Business District.

8. In June 1986, the deceased and the Defendant purchased their own home, which was also located in St Clair.

9. The deceased and the Defendant had three children, being Ashleigh Anne Davis (née Palombo), who was born in January 1988; Emma Gail Schild (née Palombo), who was born in May 1989; and Kristy Nicole Palombo, who was born in September 1992.

10. The deceased and the Defendant separated in about July 2010. Immediately prior to separation, they had lived together in a property at Emu Plains, also a suburb of Sydney, about 58 kilometres west of the Sydney Central Business District.

11. At the date of the hearing, the Defendant continued to reside in the Emu Plains property.

12. Neither the deceased, nor the Defendant, following their separation, applied for a property declaration, or property alteration order, pursuant to s 78 or s 79, or entered into a Financial Agreement, under s 90C, of the Family Law Act 1975 (Cth).

13. The Defendant did not receive any correspondence from the deceased, or from any legal representative acting on his behalf, initiating proceedings, or even requesting that negotiations commence relating to a property settlement.

14. The Plaintiff has three children by a prior marriage, namely Adrian, who was born in June 1990; Danielle, who was born in July 1992; and Jasmin, who was born in October 1994. She and her husband separated in 2010 and a divorce order was made in 2013. (The names and dates of birth of the Plaintiff’s children, and the year of separation from her husband, are taken from the chronology included in the submissions of counsel for the Plaintiff. They are not otherwise disclosed in the evidence. The facts have been included to complete a history of the parties.)

15. The Plaintiff and the deceased met in June 2011.

16. The deceased’s mother died in September 2010, and his father died in July 2013.

17. The Plaintiff has remained living in the St Clair property, which is still registered in the name of the deceased. He had purchased the property, from his father’s estate, in about May 2014.

18. In May 2019, steps were taken by Ashleigh to obtain a grant of Letters of Administration. Her application was rejected as she had no “interest” in the deceased’s estate.

19. On 11 June 2019, the Plaintiff lodged a caveat requiring that “[n]o grant of Letters of Administration be made in the estate of [the deceased] … without prior notice to me”. This is what is described as a general caveat. It has lapsed by effluxion of time, but the issue of administration has been overtaken by these proceedings.

39. Pausing there, I add some formal matters of fact that I consider are relevant under the Act, which are undisputed, or which I am satisfied have been established by the evidence:

1. All of the property, owned solely by the deceased, at the date of his death, forms part of the intestate estate of the deceased.

2. The Defendant is a spouse of the deceased as she was married to him immediately before his death and as there had been no divorce order made to dissolve their marriage.

3. The Plaintiff and the deceased were not married to one another or related by family.

4. There was no relationship between the deceased and the Plaintiff that was a registered relationship, or an interstate registered relationship, within the meaning of the Relationships Register Act 2010 (NSW).

5. Whatever the nature of the relationship between the Plaintiff and the deceased, it had not resulted in the birth of a child.

6. There was no evidence that the separation of the Plaintiff and the deceased was other than involuntary, having been caused by the death of the deceased.

7. There is no written distribution agreement reached between the Plaintiff and the Defendant in relation to the estate of the deceased.

8. There is an intestacy because the deceased did not leave a Will, rather than one where he left a Will that did not effectively dispose of his property.

The nature and value of the Estate

40. The Court made a direction on 13 May 2020 in the following terms:

1. Directs the parties to provide to the Chambers of the Succession List Judge, in hard and soft copy, an agreed schedule that contains:

a.   The assets and liabilities of the estate at the date of death;

b.   The assets and liabilities of the estate at the date of the schedule;

c.   The estimated costs and expenses of any property that is to be sold;

d.   The estimated costs of each party calculated on the ordinary and indemnity basis inclusive of GST;

e.   Any costs of any party that have been paid, and in relation to either party, whether those costs have been paid out of the estate of the deceased; and

f.   Any matters otherwise relating to the estate upon which agreement has been reached

by 4:00 p.m. on 19 June 2020.”

41. Although a document headed “Schedule of Assets and Liabilities as at 17 June 2020” was provided to the Court by the Defendant’s solicitors, counsel for the Plaintiff, at the commencement of the hearing, stated that the contents were not agreed: Tcpt, 29 June 2020, p 3(36) – p 4(19). In the circumstances, it was returned to counsel for the Defendant and not included in the Court’s papers.

42. The Court suggested that the parties, by their legal representatives, should endeavour to reach agreement on the assets and liabilities of the estate, and the value of those assets and liabilities, failing which it might be necessary to adjourn the proceedings. Indeed, an application to adjourn the proceedings was made by counsel for the Defendant on the second day, which application was refused: Tcpt, 30 June 2020, p 81(46) – p 82(01), p 87(32–50).

43. The complaint that had been made by the Plaintiff, throughout the proceedings, was that the Defendant had not disclosed the real value of the shares in private companies that the deceased held. The evidence revealed that there were, in fact, three companies, in which the deceased held shares, the value of two of which were the subject of dispute. The two companies, Kookaburra Sales & Services Pty Ltd and Kookaburra Plumbing & Electrical Pty Ltd, were used by the deceased to conduct his plumbing business. Kookaburra Plumbing & Electrical Pty Ltd had been registered on 23 December 2009. Kookaburra Sales & Services Pty Ltd had been registered on 15 March 1996.

44. In this regard, it is to be remembered that where an asset of a deceased’s estate comprises shares in a company, in order to determine the value of the estate, the market value of the shares, rather than its nominal value, should be disclosed. This is because the nominal value will not, necessarily, reflect the financial worth of the asset, and, therefore, the financial benefit to which beneficiaries are entitled. In the case of shares held in a private company, there are well recognised methods of valuing those shares by suitably qualified professionals. Alternatively, it may be possible for the parties to agree on the company’s accountants providing an estimate of the market value of the estate’s shareholding: Bellman v Peters [2020] VSCA 143 at [74]–[75] (Tate, Kyrou and McLeish JJA). (As to the valuation of a proprietary company in the family law context, see the summary of the relevant principles in Ragland v Ballock [2020] FCCA 1685 at [24] (Judge WJ Neville).)

45. Whilst I accept that the Plaintiff and the Court should know the value of the shares to which I shall refer, the undisputed evidence revealed that each company had been registered before the relationship of the Plaintiff and the deceased commenced, and, as will be read, that the Plaintiff had made virtually no contribution, directly, or indirectly, to the business that was conducted by the companies. Her contribution, was limited to assisting the deceased with painting the floor of a factory premises used by the business and cleaning the premises from time to time. In addition, on occasions, she would accompany the deceased on plumbing jobs when he was called at night: Affidavit, Christopher Palombo, 15 June 2020 at par 16.

46. Furthermore, whilst it was not entirely clear that Kookaburra Plumbing and Electrical Pty Ltd was a trustee company, there was some evidence to suggest that it was. There was an unsigned Trust Deed and an income tax return for the year ending 30 June 2016, relied upon. (Whilst BAS statements that were also tendered (Ex D2), show the existence of the trust, they do not show that Kookaburra Plumbing and Electrical Pty Ltd was a trustee.)

47. In addition, there was evidence that there was a liability of $650,000, which was, in fact, a debt of the company included as a debt of the estate. Ultimately, the amount of that debt has been ignored in calculating the liabilities of the estate of the deceased.

48. It was not until the third day of the hearing that the Court was provided with an agreed Schedule identifying the nature and value of the property owned by the deceased at the date of the schedule of assets and liabilities. That Schedule was marked as Ex SAL1 and was in the following terms (omitting a reference to cents which will explain any apparent mathematical errors and including the company debt of $650,000):

ASSETS
Description	Estimated value
1. REAL ESTATE
(a) Property known as XX Naval Parade, Erowal Bay NSW being the whole of the land contained in Certificate of Title Folio Identifier YY	$ 620,000
(b) Property known as XX Arundel Park Drive, St Clair being the whole of the land contained in Certificate of Title Folio Identifier YY	$ 720,000
(c) Property known as XX Christie Street, St Marys being the whole of the land contained in Certificate of Title Folio Identifier YY	$1,150,000
(d) Property known as XX Walmer Avenue, Sanctuary Point NSW being the whole of the land contained in Certificate of Title Folio Identifier YY	$ 560,000
(e) Property known as XX Severn Street, St Marys NSW being the whole of the land contained in Certificate of Title Folio Identifier YY	$ 400,000
(f) One half share of the property known as ZZ Severn Street, St Marys NSW being the whole of the property contained in Certificate of Title Folio Identifier WW	$ 200,000
2. BANK ACCOUNTS
(a) Westpac - Savings account - xxx472	$ 80,078
(b) National Australia Bank - Classic account - xxx970	$ 108,300
(c) National Australia Bank - iSaver account - xxx543	$ 517
3. MOTOR VEHICLES
(a) Motor vehicles, motor bikes	$ 380,000
4. MISCELLANEOUS
(a) IAG Ltd shares – 209 ordinary fully paid shares	$ 1,185
(b) Kookaburra Sales & Service Pty Ltd	$ 1
(c) Kookaburra Plumbing & Electrical Pty Ltd (see Note)	$ 100
(d) AMP Insurance proceeds	$ 59,439
TOTAL:	$ 4,279,723
LIABILITIES
Description	Estimated value
1. MORTGAGES
(a) Westpac Mortgage A/C – xxx4509	$ 181,613
(b) Westpac Mortgage A/C – xxx9049	$ 366,690
(c) Westpac Mortgage A/C – xxx4810	$ 184,570
(d) NAB Business Markets Loan A/C - xxx324	$ 650,000
2. CREDIT CARDS
(a) NAB Visa – xxx2348	$ 5
(b) NAB Visa – xxx2920	$ 5,760
(c) AMEX – xxx008	$ 26,701
(d) CBA - Mastercard – xxx3979	$ 2,731
3. MISCELLANEOUS DEBTS
(a) Revenue NSW – Land Tax (2018 instalment and estimated liabilities for 2019 and 2020)	$ 38,726
(b) Penrith City Council – xxx Severn Street, St Marys	$ 2,080
(c) Penrith City Council – xxx Arundel Park Drive, St Clair	$ 2,972
(d) Penrith City Council – xxx Christie Street, St Marys	$ 8,295
(e) Shoalhaven Water – xxx Walmer Avenue, Sanctuary Point	$ 1,015
(f) Shoalhaven Water – xxx Naval Parade, Erowal Bay	$ 1,937
(g) Shoalhaven City Council – xxx Walmer Avenue, Sanctuary Point	$ 2,855
(h) Shoalhaven City Council – xxx Naval Parade, Erowal Bay	$ 2,981
(i) BGT Tree Services	$ 4,950
(j) AK Buckley Building	$ 14,409
(k) Australian Taxation Office - Taxation liability (2017)	$ 45,997
(l) Australian Taxation Office - Taxation liability (2018)	$ 35,486
(m) Australian Taxation Office - Taxation liability (2019) – estimated to be	$ 12,000
TOTAL	$ 1,591,782
Net Estate - $2,687,941

49. A slight arithmetical error in the above went unnoticed during the hearing. Although it is of little moment, for completeness, the total assets had an estimated, or known, value of $4,279,623 and, consequently, the value of the net estate was $2,687,841.

50. However, as earlier noted, Ex SAL1 included the liability of $650,000 that is properly described as a liability of the business secured on the property of the deceased. Accepting the estimate of the value of the shares, but removing the liability from the calculation, increases the value of the deceased’s estate to $3,337,841.

51. Again, on the third day of the hearing, the parties provided an agreed document identifying the nature and value of the property owned by the deceased and the Defendant as joint tenants at the date of the deceased’s death. That document was marked Ex SAL3.

52. There was no dispute that the property identified as jointly held would pass to the Defendant as the surviving joint tenant. There was also no dispute that depending upon the nature of the distribution order, she would have to pay the debts secured on the jointly held properties. (The Defendant did not provide evidence that each of these properties had been transmitted to her following the death of the deceased.)

53. There was some dispute about whether the debts secured on the jointly held property would become debts of the Defendant. Mr Tregenza submitted that there was a continuing liability for contribution on the estate to bear part of the burden of these debts (presumably as a liability of the estate): Tcpt, 30 June 2020, p 56. Mr Flaherty took the opposite position (Tcpt, 30 June 2020, p 140) referring to s 145 of the Conveyancing Act 1919 (NSW). He did so again on the third day of the hearing. However, neither made any detailed submissions on the topic and no part of the debts secured on jointly held property was included in Ex SAL1.

54. As will be read, these reasons include a reference not only to the agreed value of each jointly held property, but also a reference to the debts secured thereon. While there was some minor dispute over the values of the jointly held property, the legal representatives provided an amended version of Ex SAL3 that was in the following terms (as further amended to correct apparent mathematical errors):

Description	Particulars of Other Joint Owner
1. Real Estate
(a) Property known as XX River Road, Emu Plains being the whole of the land contained in Certificate of Title Folio Identifier YY	Gail Charlotte Palombo
(b) Property known as XX Jody Place, St Clair NSW being the whole of the land contained in Certificate of Title Folio Identifier YY	Gail Charlotte Palombo
(c) Property known as XX Elizabeth Drive, Vincentia being the whole of the land contained in Certificate of Title Folio Identifier YY	Gail Charlotte Palombo
(d) Property known as XX Alec Avenue, Mermaid Waters QLD being the whole of the land contained in Certificate of Title Folio Identifier	Gail Charlotte Palombo
(e) Property known as XX Mistletoe Street, Claremont Meadows being the whole of the land contained in Certificate of Title Folio Identifier YY	Gail Charlotte Palombo
(f) Property known as VV Severn St, St Marys being the whole of the land contained in Certificate of Title Folio Identifier UU	Gail Charlotte Palombo
Agreed Total	$4,412,820
2. Bank Accounts
(a) National Australia Bank –    Account No xxx9970	Gail Charlotte Palombo	$115,352
Agreed Total	$4,528,172
Liabilities
(a) National Australia Bank – Account No xxx6697 Mortgage	- $1,021,060
Net Value	$3,507,112
One half of net value of jointly held property is $1,753,556 (which the Defendant receives by survivorship)

55. Counsel agreed to the quantification set out above at the hearing: Tcpt, 1 July 2020, p 201(30–39).

56. Despite Ex SAL3 having been tendered, what use could be made of the evidence was the subject of dispute. Counsel for the Plaintiff submitted that the total net value of the properties, jointly held, which passed to the Defendant by survivorship, should be considered in determining the distribution order that would be just and equitable. Counsel for the Defendant submitted that it was irrelevant in the Court making that determination.

57. For reasons to which I shall come, I am of the view that the net value of property which the Defendant will receive by survivorship is a matter that is relevant, although that value will not be used in determining the value of the deceased’s estate from which a distribution order may be made.

58. It became apparent, during the closing submissions of counsel, that which of the deceased’s properties remained encumbered would be relevant to the nature of any distribution order. I therefore directed at the conclusion of the final day of the hearing that:

“Directs the parties to forward to the Chambers of Hallen J by 4:00 p.m. on 2 July 2020 an agreed schedule disclosing the properties which are encumbered and the amount secured on each of them.”

59. The solicitors for the Defendant duly provided that agreed schedule to my Chambers by email dated 2 July 2020. That schedule was in the following terms:

Westpac Loan No	Amount outstanding	Properties secured
#4509	$181,930	XX Arundel Park Dr St Clair NSW
#9049	$367,836	XX Arundel Park Dr St Clair NSW XX Walmer Ave Sanctuary Point NSW XX Naval Pde Erowal Bay NSW
#4810	$184,570	XX Walmer Ave Sanctuary Point NSW
Total liabilities	$734,336

60. It will be observed that there are slight differences in the amounts above and those disclosed in Ex SAL1. Presumably they arise from the differences in the loan balances outstanding at the date of the Schedule as compared to 2 July 2020. Accordingly, the total has been taken into account in determining the net value of the deceased’s estate.

Credibility of the Witnesses

61. Whether or not the parties were in a de facto relationship is determined on an objective, not a subjective, basis. Some assessment of the reliability of the parties’, and their witnesses’, evidence is required. Credit findings assume a greater significance in cases where one party to the asserted relationship is dead: see, for example, Indjic v Stojanovic [2020] NSWSC 470 at [90]–[97].

62. Because of the position of the parties and the witnesses, the Court is required to determine on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), which version of events is the more probable. It is also the case that a de facto relationship means a relationship which exists in fact and that is established by determining what the parties to the alleged relationship are doing.

63. No submissions were made about the credibility of any witness or the reliability of her, or his, evidence generally. Yet, the only truly independent witnesses are the witnesses called by the Plaintiff, namely, Christopher Palombo Snr, the oldest brother of the deceased, John Palombo, an older brother of the deceased, Christopher Palombo Jnr, a nephew of the deceased, Domenico Valenti, a labourer employed by the business conducted by the deceased, and Margaret Sutherland, a neighbour of the deceased. Each is truly independent as he, and she, does not have any direct, or indirect, interest in the estate or in the result of the proceedings. Each of the other witnesses is either a party, or in the case of the Defendant’s witnesses, related by blood, or marriage, to her.

64. In relation to the Defendant and her witnesses (all family members), there is one matter that is pertinent in the assessment of her, and his, evidence respectively. It was not disputed that the deceased, intentionally, did not disclose to any of them that he was in a relationship with the Plaintiff. Indeed, despite encouragement from his nephew, and from Mrs Sutherland, he refused to do so, and each of them felt constrained to keep his confidence. It is clear that the Defendant, and her witnesses, only saw part of the picture.

65. The reasons for the deceased’s non-disclosure, as expressed, appear to have been financial and emotional. He did not wish to have family law proceedings, principally by way of a claim for a property adjustment order, brought by the Defendant. In addition, he did not wish his children to know of his relationship with the Plaintiff.

66. Ultimately, whilst there were some minor disputes of fact, I am satisfied that each of the witnesses was giving evidence to the best of her, and his, ability. To the credit of each counsel, neither suggested the contrary and there was no submission made that one, or other, of the witnesses should be disbelieved.

The Statutory Framework — an intestate estate

67. Before turning to the other facts in the case, it is convenient to describe the statutory framework that applies in relation to an intestate estate in a claim such as this one. There is an absence of case law going to the scheme created by this part of the Act (although Lindsay J has written an extremely analytical, and learned, judgment in Re Estate Wilson, Deceased (2017) 93 NSWLR 119 at 121 [1]; [2017] NSWSC 1 at [1], which was “the first case of its kind to come before the Court … [involving] competing claims to administration, and beneficial ownership, of the intestate estate of a 56-year-old deceased Aboriginal man (adopted at birth into a non-Aboriginal family) …”).

68. Consideration will be given to the relevant parts of Ch 4 of the Act (ss 101–140). The Chapter was inserted into the Act by the Succession Amendment (Intestacy) Act 2009 (NSW), which was assented to on 9 June 2009 and which came into operation on 1 March 2010 and it applies to persons dying intestate on, or after, that date: see Sch 1, Pt 4, cl 13 of the Act.

69. The long title to that Act stated that it was “to amend the Succession Act 2006 and the Probate and Administration Act 1898, to revise and re-state the rules for distribution on intestacy; and for other purposes”.

70. Chapter 4 “must be read in the context of the Act as a whole, with an appreciation that the Act governs the making, alteration, revocation, revival and construction of wills (Chapter 2), applications for family provision relief (Chapter 3)”, and to make provision for the distribution of intestate estates: Re Estate Jerrard, deceased (2018) 97 NSWLR 1106 at 1113 [33]; [2018] NSWSC 781 at [33] (Lindsay J).

71. In summary, Part 4.1 (entitled “Preliminary”), comprising ss 101–109A, contains foundational definitions. Part 4.2 (entitled “Spouse’s entitlements”) comprising ss 110–126, contains the entitlement of a surviving spouse. Division 3 of this Part, comprising ss 122–126, deals with the entitlement of multiple spouses where, for example, the intestate was married and also has one, or more, domestic partners, and the Court’s power to make a distribution order, where an application is made for such an order.

72. Section 101 of the Act, relevantly, provides:

eligible relative means a relative of the intestate who is entitled to share in the distribution of the intestate estate under Part 4.3.

…

intestate estate means:

(a) in the case of an intestate who leaves a will—property that is not effectively disposed of by will, and

(b) in any other case—all the property left by the intestate.

73. Section 102 of the Act provides that “[a]n intestate is a person who dies and either does not leave a will or leaves a will but does not dispose effectively by will of all or part of his or her property”.

74. Section 103 provides that “[a] reference in this Chapter to an entitlement to the whole of the intestate estate is a reference to so much of the estate as remains after payment of all such funeral and administration expenses, debts and other liabilities as are properly payable out of the estate”. The expression is used in a number of sections in the Chapter including, so far as is relevant to this case, ss 101, 111, 112, 122, and 123.

75. Section 104 of the Act defines spouse of an intestate person to mean a person:

(a) who was married to the intestate immediately before the intestate’s death, or

(b) who was a party to a domestic partnership with the intestate immediately before the intestate’s death.

76. It follows that a person may be regarded as a spouse for the purposes of the rules of intestacy in either of the two ways set out in the section. Relevantly, where the deceased and the deceased’s spouse are separated but still married immediately before the deceased’s death, the spouse comes within the definition in paragraph (a).

77. Section 105 of the Act provides that:

A domestic partnership is a relationship between the intestate and another person that is a registered relationship, or interstate registered relationship, within the meaning of the Relationships Register Act 2010, or a de facto relationship that:

(a) has been in existence for a continuous period of 2 years, or

(b) has resulted in the birth of a child.

78. Both the existence of the domestic partnership between the applicant and the deceased, and that it was in existence immediately before the deceased’s death, must be established.

79. In Sadiq v NSW Trustee & Guardian [2015] NSWSC 716, I concluded, at [2]–[4] and at [187]–[190], and Emmett AJA, hearing a notice of motion ancillary to the appeal, in Sadiq v NSW Trustee and Guardian [2016] NSWCA 59 at [3]–[4], accepted, that ss 104 and 105 require the existence of a de facto relationship for a continuous period of two years occurring immediately before the intestate’s death because, only then would one be able to establish that the applicant was a party to a domestic partnership with the intestate “immediately before the intestate’s death”.

80. However, in Brownell v Robinson [2017] TASFC 11, Estcourt J (Pearce J and Marshall AJ agreeing), at [95], considered that the judgments in Sadiqv NSW Trustee and Guardian on this point were “clearly wrong”. His Honour considered that there could be a de facto relationship where the relationship had existed at any time for a continuous period of two years even though it had been interrupted, and then resumed, provided it was in existence again immediately before the intestate’s death.

81. In Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324, Bell P, at [18], stated that for the plaintiff to be a spouse of the deceased “… it is necessary to determine whether he was party to a domestic partnership with her immediately before her death, and this in turn requires him to establish that he was in a de facto relationship with the Deceased for a continuous period of at least two years prior to that time. This in turn depends upon him establishing that he and the Deceased had a ‘relationship as a couple living together’ in the relevant period”.

82. A similar view appears to have been taken by Lindsay J in Re Estate Miruzzi, deceased [2018] NSWSC 1899 at [5]. His Honour said, albeit in obiter, of the task facing the second defendant in that case:

“… unless the second defendant (a former wife of the deceased) can establish (within the meaning of sections 104-105 of the Succession Act 2006, read with section 21C of the Interpretation Act 1987 (NSW) that, notwithstanding dissolution of her marriage to the deceased, she was in a de facto relationship with him for a continuous period of two years immediately before his death, as a consequence of which (pursuant to section 111 of the Succession Act) she is entitled to the whole of his estate.”

83. To a similar effect, Slattery J said in Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe [2017] NSWSC 818 at [4]: “But if Ms Wilson is able to establish that she was the deceased’s de facto spouse for a period of two years continuously up until the time of his death then by the combined operation of Succession Act, ss 104, 105 and 111 she would be entitled to the whole of his estate”.

84. With the greatest respect, I am unpersuaded that there is any error in the approach taken by me in Sadiq v NSW Trustee & Guardian. I have earlier referred to s 104(b) of the Act. However, it is unnecessary to determine whether the construction of the section favours one view, or the other, as, in this case, there was no real dispute that if the Plaintiff was party to a domestic partnership with the deceased immediately before his death, she had been in a de facto relationship with him for a continuous period of at least two years prior to that time.

85. There is no definition of “de facto relationship” in the Act. Nor is there a precise test identified in the Act for determining whether such a relationship exists. However, the phrase is defined in s 21C(2) of the Interpretation Act1987 (NSW) which provides:

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.

86. Importantly, the definition does not require an exclusive relationship and it can be established, even where one, or both, of the parties are legally married to someone else, or in a registered relationship, or interstate registered relationship, with someone else.

87. Section 21C avoids any reference to “husband and wife”, which terminology could lead to an inappropriate search for analogies to the legal relationship of marriage.

88. The Oxford English Dictionary defines “couple” as a union of two. The word “couple” comes from the Latin word “copula” which is a bond, tie, or other connecting item.

89. Section 21C(3) of the Interpretation Act, provides:

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.

90. It can be seen that the nine criteria referred to may be grouped into “private” ((c), (d), (e) and (f)) and “public” ((a), (b), (g), (h) and (i)) headings. None of the matters listed is of decisive significance or a mandatory relevant consideration. The criteria are inclusive but not exhaustive. They all, however, suggest a continuing course of conduct and behaviour, not an event at a fixed point of time: Bezjak v Wyatt [2018] NSWSC 199 at [48].

91. No matter how close the involvement in each other’s emotional lives, a conclusion that two persons are a couple living together involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 at [14] (Bryson AJ).

92. These criteria are no more than reminders, or indicators, of matters that might possibly be relevant in deciding the question whether the parties lived in a de facto relationship: Piras v Egan [2008] NSWCA 59 at [146] (Campbell JA, Giles and Tobias JJA agreeing). The last paragraph of the section makes clear that they are not to be weighed against each other and given individual weightings of importance. Ultimately, the criteria are used to assist in determining whether the parties were in “a relationship as a couple”. They should not overshadow that central concept. In other words, whether the Plaintiff and the deceased were a couple living together, and whether the relationship had been in existence for a continuous period of two years, is to be addressed by considering the facts in the light of the statutory test which is intended to be flexible enough to recognise the existence of the diversity of relationships within modern society. For this reason, each case must be assessed on its own facts and circumstances.

399. In answer to the issues identified by the parties:

1. Was the Plaintiff the spouse of the deceased immediately before his death within the meaning of Ch 4 of the Act? Yes. The Plaintiff and the deceased were in a de facto relationship that had been in existence for a continuous period of more than two years.

2. If the Plaintiff is a spouse of the deceased, should there be a distribution order made by the Court pursuant to s 126 of the Act? Yes.

3. If a distribution order is made, what is the just and equitable distribution of the estate of the deceased and should it include any conditions? See Paragraphs [402] and [403] above.

4. How should the costs of the proceedings be borne? As agreed between the parties.

407. In view of these conclusions, I shall allow the parties to discuss the way forward in relation to the administration of the estate and the form of orders. I shall allow 14 days for them to see if agreement can be reached. I adjourn the proceedings to the date being 14 days from the date of the delivery of these reasons.

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Decision last updated: 11 September 2020