Bevilacqua v Robinson

[2008] NSWSC 463

CITATION:	Bevilacqua v Robinson [2008] NSWSC 463
HEARING DATE(S):	2 & 5 May 2008
JUDGMENT DATE :	20 May 2008
JURISDICTION:	Equity
JUDGMENT OF:	Jagot AJ
CATCHWORDS:	FAMILY PROVISION - application by de facto partner of deceased - relatively short relationship - de facto partner benefited from deceased's bounty during relationship - other claims on deceased's bounty - de facto partner had not established inadequate provision for his proper maintenance, education and advancement in life.
LEGISLATION CITED:	Family Provision Act 1982
CATEGORY:	Principal judgment
CASES CITED:	Ernst v Mowbray [2004] NSWSC 1140 Gollege v Donnachie [2005] NSWSC 16 Hardiman-Burt v Gordon [2008] NSWSC 395 Hyland v Burbidge [2000] NSWSC 12 Kay v Archbold [2008] NSWSC 254 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24 Samsley v Barnes [1990] NSWCA 161 Singer v Berghouse (No 2) (1994) 181 CLR 201 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker (Unreported, Supreme Court of New South Wales, Young J, 17 May 1996)
PARTIES:	PLAINTIFF Gaetano Bevilacqua DEFENDANT Samantha Jennifer Robinson - Estate of Jennifer Margaret Robinson
FILE NUMBER(S):	SC 4058 of 2007
COUNSEL:	Mr M K Meek with Ms Despina Laftsidis, plaintiff Ms Louise Goodchild, defendant
SOLICITORS:	Russell-McLelland Brown Lawyers, plaintiff Ritchie & Associates, defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Jagot AJ

20 May 2008

4058 of 2007 GAETANO BEVILACQUA v SAMANTHA JENNIFER ROBINSON

JUDGMENT

1 HER HONOUR: By this application the plaintiff, Gaetano (Gary) Bevilacqua, sought an order for provision out of the estate of the late Jennifer Margaret Robinson (the deceased) under s 7 of the Family Provision Act 1982 (the Act).

Facts

2 The plaintiff is 56 years of age. He was the de facto partner of the deceased. They began living together in the deceased’s home at George Street, Penshurst in 2000 after first meeting in 1999. They lived together until the deceased’s death at age 54 on 3 August 2006. Accordingly, the plaintiff is an eligible person for the purposes of the Act. The deceased’s will was dated 29 February 2000, before the plaintiff moved into the deceased’s house. It makes no provision for the plaintiff. By her will the defendant left her estate to her three daughters from an earlier marriage, Samantha Gibson (now aged 28), Rebecca Hendricks (now aged 30), and Alexandra Robinson (now aged 20). The marriage ended in divorce a number of years before the plaintiff met the deceased.

3 Probate was granted on 15 December 2006.

4 There was some dispute between the parties about the assets of the estate. The dispute related to: - (i) the value of the Penshurst property (where a range of $540,000 to $580,000 is indicated in the property appraisal, with the plaintiff content to adopt the mid point of $560,000 and the defendant suggesting a value of $550,000), and (ii) certain distributions already made to the deceased’s daughters that the plaintiff described as premature (referring to Ernst v Mowbray [2004] NSWSC 1140 at [65] as a basis for treating those funds as part of the estate) and the defendant said included (at least in part) reimbursement for various expenses of the estate. I accept the plaintiff’s approach to the assets of the estate. This leads to the following summary position:

Assets
Penshurst property	$560,000
Balance of cash investment account	$9,599.88
Moneys distributed to daughters	$23,779.62
Moneys held by Mercer Super Trust	$149,936
Liabilities
ANZ credit card	$23,413
Mortgage	$225,000

5 The costs of these proceedings must also be taken into account. The defendant estimated costs of $25,250. The plaintiff sought an allowance for costs in the sum of $35,000 (although the plaintiff has incurred a greater costs liability than this amount). On this basis the net amount of the estate is approximately $434,652.

6 The plaintiff was born in Italy and moved to Australia when he was 10 or 11. He is an Australian citizen. He has two younger brothers. His mother is widowed and aged about 80. The plaintiff currently lives with his mother in her three bedroom house (which is not encumbered by any mortgage).

7 The plaintiff completed the Higher School Certificate and then worked in various jobs over a number of years during which he mostly lived with his mother. When he was in his mid-30s he decided to continue his education. He attended the University of Wollongong between 1986 and 1988 graduating with a Bachelor of Arts (double major in Italian and French languages and literature) in 1989. The plaintiff continued study part-time in 1989 and 1990 at the University of Western Sydney obtaining a Diploma in Education in 1991 with certification to teach ESL (English as a Second Language). Since 1990 the plaintiff has worked casually as a teacher. Although he has periods of teaching blocks (the equivalent of full-time work for the duration of the block) he apparently has not held a permanent full-time teaching or any other position since he graduated.

8 The plaintiff met the deceased in mid-1999. At that time the plaintiff was living with his mother. He described his relationship with the deceased as his first significant relationship. He owned a car but little or no furniture and had no other material assets. He was working as a casual teacher when work was available. The deceased was working full-time in the pharmaceutical industry. She continued to do so until a period of sick leave for four months in 2006. At that time the deceased thought she had a back problem for which she received chiropractic treatment. Following an abbreviated return to work, the deceased was hospitalised in July 2006. After a short period of release (three days) she was diagnosed with lung cancer and was re-admitted to the hospital. She died about three weeks later.

9 The plaintiff moved in to the deceased’s home at Penshurst in 2000. Alexandra, the deceased’s youngest daughter, was about 12 or 13 at this time and lived in the Penshurst property for the duration of the plaintiff’s relationship with the deceased and continues to do so. The plaintiff described his relationship with the deceased as that of a husband and wife and loving and close at all times. The plaintiff described substantial contributions that he said he made to the Penshurst property, their living expenses, and the deceased’s welfare. These included: - (i) with the deceased, maintaining Alexandra in all respects, (ii) giving the deceased about $750 to $800 cash a fortnight when he was working full-time and $500 a fortnight when he was working casually, (iii) helping with the household chores, (iv) buying chlorine for the pool and assisting in its maintenance and upkeep, (v) with the deceased, upgrading the Penshurst property together including substantial purchases (such as an air conditioning unit, a new shed, a new fence, furniture, kitchen appliances and the like), (vi) with the deceased, renovating the Penshurst property (including floor tiling, new pavement, an expansion of the computer room, installation of two wall units, a new pantry, a new patio and barbecue area), (vii) with the deceased, carrying out the grocery shopping, and (viii) when the deceased was sick during the relationship (noting that she was prone to illness for four or five days at a time), carrying out all chores and caring for the deceased.

10 The plaintiff said that he and the deceased carried out numerous activities together as part of their shared life as de facto husband and wife, including providing support, guidance and maintenance for Alexandra and involvement with the deceased in the lives of her other daughters. Around Christmas 2003, the deceased had wanted to become engaged and the plaintiff bought her a ring that he said she would wear constantly before it broke. About 4 or 5 months before the deceased became ill he and the deceased again talked about marriage. No specific marriage arrangements were made either time. On 5 March 2005 the plaintiff nominated the defendant as the beneficiary of his superannuation (then worth approximately $30,000).

11 The deceased was diagnosed with diabetes in 2005. In 2006 she began to experience severe back pain and attended a chiropractor. She took all her sick leave but her condition did not improve. This continued for about four months. She later decided to go back to work. However, her co-workers said she should attend the hospital for urgent attention due to her pain. The deceased was referred to a specialist. That evening she was taken ill and the plaintiff called a friend of the deceased. They decided to call an ambulance. The deceased thus attended the Emergency Department of the St George Private Hospital in July 2006. She was released for three days but remained in serious pain. She saw another specialist who diagnosed a malignant tumour in her lung and was re-admitted to the hospital. She died approximately three weeks later on 3 August 2006. The plaintiff said he cared constantly for the deceased throughout this period of illness and until her death.

12 The plaintiff does not own any property. He said he earns about $500 to $600 a week as a casual teacher and does not have full-time job security. Towards the end of the teaching year casual teaching positions are scarce. During those periods for approximately two months each year the plaintiff claims unemployment benefits from Centrelink. He has superannuation presently worth about $33,000 and savings of approximately $500. His car is a Ford Fiesta he said was worth $14,000 (or $19,000 according to a later affidavit). He lives with his mother and pays $200 a fortnight towards all expenses (rent, food, repayment to his mother for the car she purchased for him, and other expenses). He has an outstanding loan of $2200 to ANZ, a taxation debt under review, and car repayments. In cross-examination he identified the taxation debt as $14,000 but said he had arranged with the Australian Taxation Office for waiver of the interest ($10,000) on payment of the primary tax liability of $4000. He also referred to his other expenses as including $90 per month for car insurance, $139 per month to the Teachers’ Health Fund, and $100 per annum to the Independent Teachers’ Union.

13 The plaintiff said that provision out of the deceased’s estate would be used to purchase his own property and household goods, as well as a new car. He was also interested in pursuing postgraduate studies at university.

14 The plaintiff denied or explained in a different light the various allegations made by Alexandra and Samantha in their evidence about his conduct during the relationship with the deceased.

15 Alexandra (who is 20) still lives in the Penshurst property. By arrangement with her sisters she pays $100 a week rent and they share other property related expenses. She is studying full-time (Bachelor of Teaching/Arts) at the Australian Catholic University. She has a part-time job in a supermarket and earns $120 per week and receives a Centrelink benefit of $350 per fortnight. She lived with her mother during the whole of the relationship with the plaintiff. According to Alexandra her mother often told the plaintiff to look for full-time work. When he worked he would then gamble. Alexandra said her mother and the plaintiff often argued about his gambling. She recalled that he would often be on the computer (owned by her mother) buying music items daily. This too led to arguments with her mother who considered it a waste of money. Alexandra said her mother struggled financially. According to Alexandra her mother paid all the bills. Alexandra also said her mother and the plaintiff argued constantly about his laziness and refusal to help with the household chores, with her mother getting angrier about the financial situation since 2005. Alexandra said her mother and she did all of the housework, maintenance, cooking and cleaning and the plaintiff would not assist even when asked, speaking to them as though they were the hired help.

16 Alexandra said the plaintiff rarely visited her mother in hospital. She would often come home from the hospital to find the plaintiff in front of the computer. She and her sisters were responsible for liaising with the medical staff about their mother’s treatment and care. They also made all of the funeral and other arrangements.

17 Samantha Gibson (aged 28) is the executrix of her mother’s estate. She married in 2004. She is in full-time employment and earns $50,000 per annum. Her husband earns $48,000 per annum. They own a property subject to monthly repayments of $3200. She and her husband would like to start a family when their finances allow it. Samantha was a regular visitor to her mother’s home and lived there for about two or more years during 2000 and then also during 2001. Samantha said that the plaintiff would often be at home all day while her mother worked for 10 or more hours every day. Samantha also said her mother paid the household and mortgage bills and that the plaintiff never helped with any property maintenance (as her mother had a lawn mowing man and fixed anything she could on her own). When she was there the plaintiff was often in the study on the computer and would emerge for dinner. He never joined in family discussions and ignored her and her sisters.

18 The evidence discloses a substantial dispute about the plaintiff’s contributions to the material and emotional welfare of the deceased. There were many other evidentiary conflicts that it is unnecessary to resolve.

19 Alexandra and Samantha were frank and credible witnesses. When asked, each promptly identified the sources of their knowledge and, where appropriate, readily conceded the limitations on their observations. For example, Alexandra’s knowledge of bill payments was based on her mother saying that she paid the bills (accepting that her mother had not said she paid “all” the bills). Her knowledge of the plaintiff’s gambling habits was the fact that he would come home late regularly (sometimes daily) and tell her mother that he had been “at the office” which was his phrase for gambling (and the plaintiff agreed that he so described his gambling activities, although he denied being a chronic gambler saying he spent between $50 and $70 per week on gambling for relaxation and the deceased approved of these activities). Alexandra agreed that her statement that the plaintiff and her mother were “never” affectionate in public should be changed to “rarely”, with more shows of affection generally at the beginning of the relationship and fewer towards the end. Samantha identified the sources of her knowledge as her own observations (particularly when she lived there) and her discussions with Alexandra (whom she called every day).

20 The plaintiff was not a frank or credible witness. He was evasive, argumentative, and quick to blame others for any inaccuracies or inconsistencies in his evidence. For example:

(1) In cross-examination the plaintiff revealed that, before he met the deceased, he had migrated to New Zealand, in effect, following a woman there he intended to marry. He said he was in New Zealand for a whole year to see if he could marry this woman. According to the plaintiff’s description of his employment history he worked for the Auckland Department of Education between 1993 and 1997. He accepted that the relationship with this woman could be described as important. When his attention was drawn to the statement in his affidavit that his first significant relationship was with the deceased the plaintiff asserted that was true because the woman in New Zealand had an affair.

(2) When asked about his assistance with the pool it ultimately emerged that he did not buy chlorine every week (as he had claimed). He conceded he had exaggerated but explained he was using figurative not literal language in his affidavit.

(3) Although the plaintiff initially claimed that he had shared in the painting of the house, an acknowledgement ultimately emerged that the deceased liked painting more than he did and thus did a “considerable amount” of the painting.

(4) Although the plaintiff referred to the deceased and he buying the wall units he agreed that, in fact, the deceased had bought the wall units for him as a gift and that he had taken them with him when he moved out of the house.

(5) Although not referred to in his affidavit it emerged that the plaintiff recorded a CD of songs he had written called “Jenny’s Heaven” and sold the CD on the street and over the internet for $15 and $25 respectively to supplement his income. He had some expenses in making the CD but said the CD had been successful, returning somewhere between $4000 and $5000 (although whether before or after expenses remained unclear). He proposed certain further musical ventures that he hoped would be more successful. He said the CD “Jenny’s Heaven” was a private matter and that he had not been asked to put information about it in his affidavits.

(6) In his first affidavit the plaintiff said he had a hiatus hernia but his condition had stabilised and he no longer took medication. He also had benign prostatic hyperplasia. He was otherwise relatively healthy. In a later affidavit he identified medical expenses for his hernia and prostate conditions and for physiotherapy to treat his shoulder. In cross-examination he said he would only take medication for his prostate when he had the money. Further, in October 2007 he was not taking medication for his hernia but was now. He had received physiotherapy for his shoulder but was not presently. These facts about his health position and medical expenses required considerable effort in cross-examination to obtain. I am satisfied that the plaintiff’s health issues are minor and his original statement that he is in reasonably good health was and continues to be accurate.

(7) In his third affidavit the plaintiff said his mother was elderly and he would be forced to leave her house when she died. In cross-examination he agreed that he expected he and his two brothers to be the only beneficiaries of his mother’s estate and he anticipated his brothers would require payment if he wished to remain in his mother’s house.

(8) The plaintiff described his payment of $200 per week to his mother as rent and described “other expenses” (for example, relating to his car) separately. In cross-examination he explained that the figure of $200 was in fact an inclusive amount he paid to his mother (on a fortnightly basis, the reference to per week being an unintended error, which I accept).

21 In addition to these matters the plaintiff agreed that he had not always put in his tax returns as required. Further, he had applied for and received Centrelink assistance on numerous occasions during his relationship with the deceased when he was not working (usually during the summer months). He routinely described himself as single (noting that the forms did not have any prompt to identify a de facto relationship). On one occasion, however, he said he was privately renting and was not in shared accommodation when he was living with the deceased. The plaintiff said he should not have done so but the deceased insisted that their relationship not be disclosed to Centrelink.

22 I consider the plaintiff to be an unreliable witness. His evidence should not be accepted where it conflicts with the evidence of Alexandra and Samantha and where their evidence is based on personal knowledge and observations (including of statements of the deceased; s 32 of the Act).

23 I accept that the plaintiff and the deceased were in a de facto relationship for about six years. I accept that each obtained companionship from the other during that period and that they considered marriage at one stage. Photographs from various stages of the relationship show mutual affection. The plaintiff made the deceased the beneficiary of his superannuation, showing some commitment to a shared life, although they always maintained separate financial arrangements.

24 The plaintiff had no assets other than a car when he moved into the deceased’s property. He lived with his mother at that time and had done so for large periods of his life. He worked on a casual basis and obtained Centrelink assistance from time to time. He said he gave the deceased money in cash so there are no financial or other records supporting his claims. Alexandra lived in the house at all times and Samantha for a substantial period during the relationship (about two and a half years). Samantha is also obviously very close to her sister calling her every day when she was not living in the home. They had numerous opportunities to observe the relationship between the plaintiff and their mother and to hear their mother’s statements about the plaintiff. In contrast to his evidence about contributions to the deceased’s material welfare, the plaintiff’s financial records do show that he liked to gamble. He also confirmed that he spent about $40 per week buying music online. It is also apparent that, although some of the renovations were relatively large (for example the patio and barbecue area), the plaintiff could not bring to mind any estimate of how much those works had cost. This is improbable if the plaintiff had in fact made any material contribution to the cost of the works.

25 Similarly, the plaintiff’s evidence about the number and nature of his attempts to obtain full-time work was vague and unsatisfactory. I accept that full-time permanent teaching positions may take a long time to obtain (as anticipated for Rebecca and, presumably, Alexandra when she is qualified). The plaintiff has been fully qualified since 1991 and is able to teach two languages and ESL (as well as, apparently, being a sufficiently proficient musician to give guitar lessons and record his own CD, with hopes for more CDs in the future). I do not accept that the plaintiff made concerted and consistent efforts to find full-time teaching work since 1991. The plaintiff may not be able to find full-time work on demand but I infer that there is a substantial element of choice in his past and present work arrangements that he finds conducive to his other interests in music and gambling.

26 Having regard to all of these matters (including the evidence of Alexandra and Samantha who were in a good position to make direct observations of the conduct of their mother and the plaintiff) I am satisfied that the plaintiff grossly exaggerated his material and other contributions to the property and welfare of the deceased. His uncorroborated assertions of substantial contributions, in light of the matters referred to above, should not be accepted.

27 I accept that, if and when he could, the plaintiff probably made some small financial contribution to routine household expenses such as shopping and the like. I do not accept that he made substantial or, indeed, any contributions to out of the ordinary expenses associated with upgrading, renovating and furnishing the house. I do not accept that he provided for Alexandra’s maintenance or that he had a familial relationship with the deceased’s daughters. I consider that the deceased fulfilled all parental responsibilities to her daughters (financially and otherwise), with any contribution from the plaintiff being minor and incidental. I also do not accept that he made any material contribution to routine or other household chores. To the contrary I accept Alexandra’s evidence that her mother and she performed all the household chores and the plaintiff did little, if anything, around the house even when asked.

28 The plaintiff provided some care and assistance to the deceased during the illness that led to her death, but her period of severe illness was relatively short. The plaintiff’s evidence in this respect also has to be weighed recognising his obvious tendency to exaggerate (even grossly exaggerate) matters that might support his claim. Further, after the deceased was admitted to hospital, Alexandra and her sisters were at the hospital every day during visiting hours. Alexandra said the plaintiff rarely visited the deceased in hospital. Although Alexandra was not at the hospital 24 hours a day (due to the limited visiting hours) I accept her evidence as generally accurate. This also tends to undermine the plaintiff’s claims about the extent of the care and assistance he provided to the deceased when she had time off work for what she thought to be a back problem (recognising that she returned to work thereafter, although apparently very briefly and perhaps for no more than one day) and when she was admitted to hospital (recognising that the time from her first admission to death appears to have been about four weeks, with only three days at home after her initial discharge).

Submissions

29 The plaintiff submitted that in all of the circumstances he undoubtedly satisfied the jurisdictional threshold in the first stage. He and the deceased had a good six years together. His gambling was modest and, in any event, this was not a factor that could operate to materially moderate proper provision (for example, Hardiman-Burt v Gordon [2008] NSWSC 395 and Gollege v Donnachie [2005] NSWSC 16). He had years of life ahead of him and was in a very modest financial position. He has some health issues of relevance to his claim. The daughters are able bodied, with the two eldest assumed to be financially secure and comfortable. The youngest did not assert any inability to meet her needs. Their claims could not deprive the plaintiff of proper provision. The defendant’s approach was inconsistent with the trend of authority relating to de facto partners.

30 The defendant submitted that the plaintiff had not met the jurisdictional threshold or, alternatively, that only a very modest legacy should be made (in the order of $10,000). The plaintiff will be able to provide for himself in the future as he did in the past before he met the deceased. The relationship was of a relatively short duration (six years at most). The plaintiff and the deceased did not marry and there is no evidence of any specific arrangements to that end. The plaintiff lived in the deceased’s house. They did not purchase a joint residence. They did not establish joint bank accounts and maintained separate financial arrangements. The plaintiff had not established the substantial contributions he claimed to have made. He left the relationship in substantially the same position as when he entered it. He is secure in his present accommodation. He is in good health with the opportunity for full-time employment. He stands to benefit from his mother’s estate. Accordingly, the plaintiff had not been left without adequate provision for his proper maintenance, education and advancement in life.

Discussion

31 Mason CJ and Deane and McHugh JJ described the process established by ss 7 and 9 of the Act as follows in Singer v Berghouse (No 2) (1994) 181 CLR 201 at 208 - 210:

It is clear that, under these provisions, the court is required to carry out a two-stage process. The first stage calls for a determination of whether the applicant has been left without adequate provision for his or her proper maintenance, education and advancement in life. The second stage, which only arises if that determination be made in favour of the applicant, requires the court to decide what provision ought to be made out of the deceased's estate for the applicant. The first stage has been described as the "jurisdictional question". That description means no more than that the court's power to make an order in favour of an applicant under s 7 is conditioned upon the court being satisfied of the state of affairs predicated in s 9(2)(a).
…
The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? … The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations.

32 The High Court confirmed the correctness of this approach in Vigolo v Bostin (2005) 221 CLR 191.

33 The “proper” maintenance, education and advancement in life of the plaintiff is not measured solely by reference to the plaintiff’s “financial circumstances, but by reference to all of the factors referred to in Singer v Berghouse” (Mayfield v Lloyd-Williams [2004] NSWSC 419 at [111] per White J). In Hyland v Burbidge [2000] NSWSC 12 at [56] Windeyer J noted it “is important in these cases to remember that the court is not dealing with average people or average community expectations for average people. It is dealing with what is proper for this particular plaintiff in the light of the circumstances…”. Further, and also at [56], that what “is proper is to be determined by prevailing standards of just and fair members of the community” (citing Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24).

34 In Walker v Walker (Unreported, Supreme Court of New South Wales, Young J, 17 May 1996) at 30 – 31 his Honour said:

The important matter is … whether in all the circumstances it would be expected by the community that the testator would have to make a greater benefaction than he in fact did to constitute proper or adequate provision for the plaintiff.

Accordingly, I reject the approach that all an applicant under this Act has to do is to prove that he or she is an eligible person and that he or she reasonably needs more financial assistance. The cases show that there must be a full investigation into all the facts and circumstances of the matter to see whether the community would expect that a person in the plight of this testator ought to have made provision or further provision for the applicant. Although it is not much mentioned in recent decisions, the older authorities often mention the fact that the Act did not intend to affect freedom of testation except in so far as that freedom had to be abridged in order to ensure that people made proper provision for those who were dependent on them financially or morally; see for instance Scales' case at 19.

35 In Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [112] Ipp J (with whom Tobias and Basten JJA agreed) referred to the observation in Walker v Walker as follows:

I agree with his Honour’s remarks, although I would express the rider that, often, where an applicant is a person within paragraphs (a) or (b) of the definition of “eligible person” in s 6(1) of the Act, proof that the applicant is a person in need will be sufficient. I accept however that there must be a full investigation into all the facts and circumstances as his Honour expounds.

36 The reason that this will often be so, I infer, is that in the ordinary course just and fair members of the community would expect a testator to make provision for such an eligible person in need. The qualifications inherent in the use of the word “often” and the further observation that a full investigation of the circumstances is required are relevant to both the question of need and proper provision, and must not be overlooked.

37 As noted, the deceased made no provision in her will for the plaintiff, the will having been prepared before the plaintiff moved in with the deceased.

38 The plaintiff owns no property, owns no furniture to speak of (other than a large collection of CDs, an old computer with no internet access, and the wall units that were given to him by the deceased), has the car bought for him by his mother, and the small amount of superannuation identified. He lives with his mother. According to his first affidavit in October 2007 he earns about $500 to $600 per week as a casual teacher and does not have job security. This, of course, was also the plaintiff’s position before he met and moved in with the deceased and is largely the result of the casual nature of his work arrangements. I have identified other aspects of his financial position above.

39 The plaintiff described his present requirements as accommodation and related expenses, acquisition and replacement of basic items (such as a washing machine, refrigerator, and furniture), and a new car for work (estimated cost of approximately $23,000), as well as his interest in pursuing postgraduate studies at university.

40 I accept that the plaintiff’s gambling is not any form of disentitling conduct.

41 The plaintiff benefited significantly from the deceased’s generosity during their relationship. The plaintiff brought nothing of any material value into the relationship. Throughout the period they lived together the deceased provided him with accommodation, meals and housekeeping services without the plaintiff making material financial or in kind contributions in return. For the reasons given above, he did not make any material direct or indirect contribution to the acquisition, conservation or improvement of the property of the deceased. He made a contribution towards the deceased’s welfare in terms of companionship. He provided some care and assistance for the relatively short period when the deceased was seriously ill. Overall, however, the plaintiff had the benefit of the deceased providing him with accommodation, full use of the contents of her house (particularly the computer that the plaintiff routinely used), the provisions of the essentials of life, the cooking of all meals, and the performance of all other household chores with little financial or in kind contribution in return other than the companionship and limited care and assistance during her illness shortly before death.

42 The plaintiff had accommodation in his mother’s house before he moved in with the deceased and that accommodation was made available to him again immediately on the deceased’s death. This is consistent with the fact that the plaintiff’s mother supported him by buying him a car in 2005. He pays a sum of money to his mother that is small having regard to the fact that it is intended to cover all his expenses (rent, car repayments, food and the like). I infer that he has full use of all of his mother’s furniture for so long as he chooses to live with her. He also has the full use of the car his mother purchased for him in 2005. He expects, with his two brothers, to be the only beneficiaries of his mother’s estate (which includes a three bedroom house not subject to any mortgage). There is no suggestion that his present accommodation is likely to become unavailable whilst his mother lives. I accept this may alter after his mother’s death but that must be weighed against his present expectation to be a beneficiary of his mother’s estate with his two brothers.

43 The plaintiff is mature but not aged. He is well educated, holds more than one formal qualification, is articulate, a musician talented enough to make a small profit out of his own recordings with some expectations for further more profitable musical ventures, and is in relatively good health. He is an experienced teacher. He expects to work to 70 or more (which is not uncommon these days) and thus has at least 14 years of work available assuming his reasonably good health continues. He has no dependants. He has no responsibilities that would prevent or hinder him in the pursuit and obtaining of full-time employment. He “has no call on his resources except to provide for himself” (Samsley v Barnes [1990] NSWCA 161 per Meagher JA with whom Samuels JA agreed).

44 With these factors it is relevant to observe that the deceased’s estate was relatively modest. The deceased was a mother responsible for bringing up three daughters. She worked full-time. When she became seriously ill her youngest daughter was still living at home, was still undertaking full-time study, and had just turned (or was about to turn) 19. Her other daughters were further advanced in life, both being married and holding down jobs, but did not yet feel sufficiently financially secure to start their own families (as both wish to do). The relationship with the plaintiff was not a particularly long one and started at a time when the deceased was already well established in her own home, with a full-time job, and day-to-day responsibilities for her youngest daughter.

45 In Kay v Archbold [2008] NSWSC 254 at [126] White J said:

The ultimate assessment of what provision is proper involves an intuitive assessment. In cases such as this, at the last and critical point of decision, the reasoning process breaks down because of the very general criteria to be applied.

46 Although his Honour was dealing with the second stage (the defendant in that case having conceded that provision for the plaintiff was inadequate) the observation is also apt for the first stage.

47 Having regard to all of the circumstances of the matter I am not satisfied that the provision made in favour of the plaintiff by the deceased person either during the deceased’s lifetime or out of the deceased’s estate is, at the time the Court is determining whether or not to make such an order, inadequate for the proper maintenance, education and advancement in life of the plaintiff. In short, I consider that the circumstances generally support the defendant’s submissions. Given, in particular: - (i) the deceased’s resources, (ii) the other calls on the deceased’s bounty (particularly of her youngest daughter), (iii) the length and nature of her relationship with the plaintiff, (iv) the plaintiff’s lack of contribution to the deceased’s material circumstances, (v) the plaintiff’s lack of contribution to the running of the deceased’s household, (vi) in contrast, the many substantial advantages and benefits the plaintiff enjoyed over six years by reason of the deceased’s generosity, (vii) the plaintiff’s age, health, educational attainments, work experience, and relationship with his mother, I do not accept that the plaintiff has been left by the deceased without adequate provision for his proper maintenance, education and advancement in life. Consistent with the defendant’s submissions the application fails at the first stage of the Singer v Berghouse test.

Orders

48 It follows from these reasons that:

(1) The summons is dismissed.

(2) The exhibits may be returned.

49 The parties may address the Court on costs.

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