Bogan v Macorig - [2004] NSWSC 993

No judgment structure available for this case.

CITATION: Bogan v Macorig [2004] NSWSC 993

HEARING DATE(S): 30, 31 August 2004
1 September 2004
18 October 2004

JUDGMENT DATE:
28 October 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Master Macready at 1

DECISION: Paragraph 85

CATCHWORDS: Family Provision. Application by a former de facto parnter for provision. Eligibility in issue. Plaintiff found to be eligible and part of the household and partly dependent. Order for legacy.

PARTIES :
Brenda Iris Bogan v Shelley Maree Macorig and Murray Alexander Ham (Estate of Raymond Walter Ham)

FILE NUMBER(S): SC 1923 of 2003

COUNSEL: J.R. Wilson SC for plaintiff
G.E. Underwood for defendants

SOLICITORS: Moroney Rutter Mantach for plaintiff
Thomas Mitchell Partners for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Thursday 28 October 2004

1923 of 2003 BRENDA IRIS BOGAN v SHELLY MAREE MACORIG AND MURRAY ALEXANDER HAM – ESTATE OF RAYMOND WALTER HAM DECEASED

JUDGMENT

1 MASTER: This is an application under the Family Provision Act 1982 (NSW) in respect of the estate of the late Raymond Walter Ham who died on 1 November 2002. The deceased was survived by his former wife, his two children of that marriage being the defendants in this matter and the plaintiff who had a long-standing relationship with the deceased.

The last will of the deceased

2 The last will of the deceased was made on 14 August 1978 under which he gave the whole of his estate to his children, the defendants, equally. In the circumstances of the case, the will did not appoint executors and on 28 February 2003 the defendants obtained Letters of Administration CTA.

The estate of the deceased

3 The deceased owned a house at Catherine Hill Bay near Newcastle and various savings. The home has been sold and the amount in the estate after administration costs comes to $664,396.29.

4 There has been a partial distribution of an amount of $234,698.14 to each of the defendants. The balance of the estate was initially set-aside in an account and that balance was $200,000.00. The account is in a Building Society in the name of the defendants and their solicitor. The amount now held in that account is $154,644.72. Interest has accrued on that account over time and there has been payment out of the account to the defendants’ solicitors in the sum of $16,250.55 in respect of the defendants’ legal costs. From time to time there have been further distributions to the two defendants. The total distribution shared between them equally amounted to $38,500.00.

5 The costs which have been incurred in the estate are fairly substantial. The outstanding costs for the defendants including the third day of the hearing amounted to $26,819.45. The plaintiff’s estimate of costs up to the third day of the hearing amounted to $44,500.00. This totals $71,319.45.

Family history

6 The deceased was born on 15 September 1927 and the plaintiff on 3 June 1930. The deceased married his wife, Adele Rae on 19 September 1953. They had two children, Murray born on 23 September 1960 and Shelley born on 16 January 1968.

7 In October 1974 the plaintiff’s husband, Neville Bogan, died. They had one child of their marriage. In that year the deceased and his wife separated. Their marriage was dissolved on 21 July 1977.

8 The deceased made his last will on 14 August 1978.

9 In December 1980 the plaintiff met the deceased at Swansea Bowling Club. In June 1981 they commenced to live together at the deceased’s home in Catherine Hill Bay. They continued to live there together (and the parties agree) in a de facto relationship until 1988 when the plaintiff left the relationship. After a few weeks she returned to her home, which she owned at Swansea.

10 In 1988 there was a rapprochement between the plaintiff and the deceased and they resumed a relationship which on the evidence is subject to some dispute. According to the plaintiff she and the deceased lived part of the week at Swansea and rest of the week at the deceased’s home at Catherine Hill Bay. In 1989 the plaintiff commenced work with Access Industries and continued fulltime in that occupation until 1992. The deceased himself had retired from work in the mid 1980s. After 1992 the plaintiff worked part time at Access Industries.

11 In the early 1990s the deceased was diagnosed with asbestosis. In 1996 he made a claim in Dust Diseases Tribunal and as a result he received $40,000.00. That amount was placed in a bank account where it remained until his death. The deceased made promises to the plaintiff that she should receive that money on his death although he did not repeat these promises to his children. He also made promises that the plaintiff should receive $5,000.00 from each of his children as the children were receiving the house. The children acknowledge that such promises were discussed between the deceased and them prior to his death.

12 The plaintiff ceased work in the year 2000 and the condition of the deceased declined from this time until his death. In September 2002 he was admitted to hospital where he was treated and discharged to his home. He died at home on 1 November 2002.

13 Administration of his will was granted on 28 February 2003 and these proceedings were commenced within time.

Eligibility of the plaintiff

14 The plaintiff claims to be an eligible person on a number of different bases. The first claim that she makes is that she was living in a domestic relationship with the deceased at the time of the deceased’s death.

15 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 (NSW) which took effect on 28 June 1999, there was an extension of the Act, which applied to proceedings that commenced after that date. The amended Family Provision Act incorporates the definition of a ‘domestic relationship’ in the Property (Relationships) Act 1984 (NSW).

16 The Property (Relationships) Act applies to domestic relationships which are defined in s 5 as follows:-

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1)(b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

Status of Children Act 1996

Children and Young Persons (Care and Protection) Act 1998

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

17 It can be seen from the terms of s 5 (1) of the Property (Relationships) Act that a domestic relationship can be either a de facto relationship or a close personal relationship. The definition of ‘de facto relationship‘ itself appears in s 4 of the Property (Relationships) Act and is in the following terms:-

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(b) the nature and extent of common residence,

(i) the reputation and public aspects of the relationship.

(3) No finding in respect of any of the matters mentioned in subsection (2 ) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

18 This definition apart from the provisions of sub-clause (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act and the Family Provision Act. See - Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.

19 Apart from the exclusionary matters in s 5(2) there is no definition of “close personal relationship”. Little help is obtained from the reading speeches as to the meaning of “close personal relationship”. It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons “who are living together, one or each of whom provides the other with domestic support and personal care”. It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The “close personal relationship” has to be between two adult persons who are “living together”. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a “de facto relationship” concepts relating to a “couple” are not relevant. Instead the definition calls for two different links. The first is that the parties are “living together”. The second is that “one or each of whom provides the other with domestic support and personal care”.

20 So far as the first requirement is concerned, since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

21 The second requirement is cumulative. There must be both domestic support and personal care.

22 It is the provision of “personal care” which provides the clue to the meaning of the composite expression “domestic support and personal care”. Some of the primary meanings of “personal” include:-

(a) Of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.

(b) Of or pertaining to one's person body or figure; bodily."

Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(a) The person concerned.

(b) An employed valet or lady in waiting,

(c) a mother for her sick child or

23 The legislation excludes the first two but would include the last two examples.

24 The plaintiff claims that she qualifies in respect of a de facto relationship and a close personal relationship. It is plain that the plaintiff and deceased lived together at the deceased’s house at Catherine Hill Bay between 1981 and 1988. There is no dispute between the parties that a de facto relationship existed at that time.

25 In 1988 there was a separation when the plaintiff left the deceased and after a few weeks at her daughter’s home she commenced to reside in her house at Swansea. According to her evidence, the separation was because of difficulties that the plaintiff was having with the deceased’s daughter, Shelley. There is some evidence to suggest that the deceased was happy that the relationship finished at that time.

26 According to the plaintiff, whose evidence I accept on this aspect, she and the deceased discussed the situation and they agreed to get back together on the basis that they would spend time together either at her home at Swansea or at the deceased’s home at Catherine Hill Bay. This discussion was a month or two after the separation.

27 The substantial dispute in this case centres on the extent that the plaintiff and the deceased were together up until about the time of the deceased’s hospitalisation in September 2002. At that time the deceased was hospitalised to have a heart valve inserted and he returned home in September remaining there until he died in November 2002. According to the plaintiff she gave up her only pastime of bowls in August 2002 so that she could be with the deceased and look after him. The plaintiff’s evidence is that she lived with the deceased at his home during this period from August 2002 until the deceased’s death on 1 November 2002. There was one period at about the time the deceased was discharged from hospital which the plaintiff says was about three or four days and a conversation with the deceased put it at ten days, when the plaintiff had to stay away from the Catherine Hill Bay home because she had an infection and it would have been dangerous for the deceased to have caught such an infection. Apart from this period I accept the plaintiff’s evidence that she was present and living in the house between August 2002 and the death of the deceased.

28 I will turn to consider the question of whether or not there was a de facto relationship between the plaintiff and the deceased between 1998 and his death by reference to the various headings to which I have referred to above. However, I will first deal with the plaintiff’s credit.

29 The plaintiff was entitled to a pension from the Department of Veteran Affairs and she and the deceased maintained a long-standing deception of that Department for the purpose of maintaining their individual pensions. The explanation for adopting this approach did not seem to me to be acceptable. The other area that touches upon the plaintiff’s credit is a matter that related to her frankness in disclosing to the Court her financial situation. There was an adjournment during the hearing of this matter to enable the defendants to obtain evidence as to the cost of repairs to the plaintiff’s property. When their expert visited the property he found a development application notice from the Council in respect of the plaintiff’s property. Further enquiries revealed that the plaintiff had lodged a development application in 2003 to have the property approved for dual occupancy. At the time of the hearing the matter was still at the Council planning stage but notwithstanding that she had lodged this application for approval for dual occupancy and the erection of another house on the land she did not disclose it. For example she could have easily disclosed the information in her affidavit sworn 10 January 2004.

30 The plaintiff’s explanation was that she had been told by her solicitor not to mention the matter until there was a decision by the Council. Although there was no evidence called to substantiate this the plaintiff maintained that the application was not likely to be approved. However, this is somewhat strange because of the effort that had gone into the application by that stage. I do not think that the plaintiff was being frank with Court in not disclosing that matter which could well affect the value of her property. In the circumstances I have grave reservations about the plaintiff’s evidence and will regard it with care where it is not corroborated.

The duration of the relationship

31 The relevant period is the period from 1988 to 2002. The nature of the relationship is explored hereafter.

The nature and extent of common residence

32 There is a substantial dispute between the parties in respect of the period between 1988 and August 2002. The plaintiff’s sworn evidence was that after the reconciliation, she and deceased lived together either in his home at Catherine Hill Bay or at her home at Swansea. She says that they spent approximately three or four days at Swansea and the remainder of the week at Catherine Hill Bay. She stayed with the deceased up until 2000 spending more time at Swansea because it was close to the Swansea Bowling Club but after that she preferred to stay at Catherine Hill Bay as the deceased’s respiratory condition was better in that location.

33 There was no-one living with the plaintiff and the deceased in the years in question and, accordingly, the defendants’ case is based upon evidence given by family members or friends who had contact with the deceased during the relevant period. This evidence of its nature has the likelihood of only being a small snapshot in time although some of the evidence was quite powerful.

34 Adele Rae was the deceased’s former wife. They separated in 1974 and they were divorced in 1977. However, it is plain that they continued a friendship thereafter. Between 1978 and 1994 she lived at various places such as Swansea, Belmont North and Williamtown. In 1994 she moved back to Catherine Hill Bay following the death of her mother and she then lived in a house down the road from the deceased. She remained there until 1998 when she moved to premises at Caves Beach Road, Caves Beach. She gave evidence that from 1994 until 1998 she would see the deceased regularly on at least five occasions a week. He would come over to her house and depending on the time he arrived they would have morning tea, afternoon tea, lunch or dinner. The plaintiff did not accompany the deceased on these occasions and she did not see the plaintiff at the deceased’s house. In fact their respective houses were located across the road from each other. As Adele Rae indicated in her evidence there were times when the deceased was away from his home and on those occasions she used to look after his animals.

35 After Adele Rae moved to Caves Beach in November 1988 there was still contact between her and the deceased. I found Mrs Rae to be a straightforward and accurate witness.

36 A clue as what was really happening comes from a number of conversations the deceased had with various people. Elaine Frances Ham who is the second defendant’s wife gave evidence of conversations she had with the deceased as follows:

On other occasions I would have a conversation with Ray as follows, or words to the same effect:

37 Jack Andrews, a close friend of the deceased, was often present at Catherine Hill Bay when he would see the deceased at Mrs Rae’s house. His evidence confirms the lack of the presence of the plaintiff and supports Mrs Rae that she mended the deceased’s clothes and provided cooked meals for the deceased to take home. Mr Andrews had also been at the deceased’s house and could see no indication of a female presence in the house.

38 There was evidence from the defendants that they saw no evidence of the plaintiff and the deceased living together at the deceased’s house at Catherine Hill Bay during this period. Because of their limited opportunities to see what was actually occurring, the evidence is not a matter on which I place a great deal of weight. However, the statements by the deceased and the evidence of Mrs Rae strongly suggest, and I accept, that in the period between 1994 and 1998 the plaintiff spent very little time at Catherine Hill Bay. It was not suggested to the plaintiff that she spent no time at Catherine Hill Bay as clearly there were occasions when she was there. However, as I have concluded, the occasions were not often.

Whether or not a sexual relationship existed

39 There was no express evidence on this aspect by the plaintiff in respect of this period. No doubt it did exist in the relationship before the separation and accordingly I would infer that it probably continued from time to time during this period until the deceased became ill.

The degree of financial dependence or interdependence and any arrangements for financial support between the parties

40 It is plain that each party maintained their own separate financial affairs and they did not have common bank accounts. The plaintiff had received a War Widows’ Pension since 1974 and she and the deceased maintained their pensions on the basis that they were living as single persons. The plaintiff did not inform the Department of Veterans’ Affairs that she was living in a de facto relationship.

41 One notable matter during this period is that the deceased purchased a car for the plaintiff and also paid the cost of maintaining the car. In general terms the plaintiff and the deceased shared grocery expenses during their relationship and the deceased paid for meals if they ate out.

The ownership, use and acquisition of property

42 The plaintiff owned her own home and personal effects and had virtually none of her own furniture at the deceased’s home at Catherine Hill Bay. The deceased had his own property and furniture and apart from the provision of the car to which I have referred there was no mutually acquired or owned property. It was not put to the plaintiff that she had not spent time at Catherine Hill Bay but I do not think this is of great moment. No doubt on occasion she spent some time there, but the real question is the extent of the time she spent there. As I have concluded, I think she spent very little time there.

43 At the time the deceased died the plaintiff had a few items of clothing at his house. After his death she removed them from the house and put them in her car before leaving. There is no evidence of his clothing remaining at her house.

The degree of mutual commitment to a shared life

44 There were photographs showing the plaintiff and the deceased at the plaintiff’s home and at other locations. In addition there were a number of family functions including those at the plaintiff’s home where the respective families were invited. In particular there was a surprise 70th birthday party for the deceased and on that invitation the plaintiff and the deceased’s daughter were shown to be the organisers.

45 It is also plain that the deceased and the plaintiff continued to holiday together. On such coach tours they appeared to be known as Mr and Mrs Ham. These were annual events.

The care and support of children

46 The plaintiff and deceased had children. However, given the ages of the children there is no question of their care or support. The plaintiff says she stayed away when the deceased’s family visited him.

The performance of household duties

47 I accept the plaintiff’s evidence that when she and the deceased were at her home in Swansea she did all the cooking, washing and ironing and she also prepared extra meals for the deceased so that when they went back to Catherine Hill Bay these could be heated.

48 There was evidence about the state of the deceased’s house from family and friends who cleaned it after the deceased’s death. In effect the evidence was that although on the surface it looked clean, in fact it was extremely dirty and it required a good clean before it could be sold. In contrast the plaintiff’s home at Swansea was immaculate. This perhaps indicates that the home at Catherine Hill Bay was not the real home of the plaintiff.

The reputation and public aspects of the relationship

49 I have touched on some of these matters earlier and there is evidence from the plaintiff that she and the deceased were known as Mr and Mrs Ham and, indeed, with some nickname variations of that name. However, in many respects they did maintain their separate identities. For example they had separate addresses in the telephone book. There is a series of sympathy cards in evidence, which were sent to the plaintiff herself after the death of the deceased, and these are an indication of the public recognition of the fact of a relationship.

50 When considering all the matters I have referred to above I am not satisfied that there was a de facto relationship from 1998. I think the parties started a different relationship which in many respects was quite close but did not constitute a de facto relationship.

51 The next question that has to be addressed is whether there was a close personal relationship between the plaintiff and the deceased in the period from August 2002 until the deceased’s death on 1 November 2002.

52 It is clear that the plaintiff and deceased lived together at Catherine Hill Bay during this period apart from a period of ten days when the plaintiff was ill. The plaintiff gave evidence that she did housework at the home of the deceased. She said the deceased would help as much as possible but in the last few months of his life his illness made it impossible for him to do anything. This housework included washing, ironing and cleaning. There is thus domestic support. So far as personal care is concerned, the plaintiff would take the deceased to doctors’ appointments during this period as he was not well enough to drive himself. She would also sit with him as he needed company and help at this time.

53 During this period the plaintiff said:

“Your father is okay to be left in the daytime but he can’t be left alone at night.”

54 However, in the period when the plaintiff was ill the deceased was left alone.

55 The plaintiff gave no evidence that she attended to the deceased’s personal needs. She gave no evidence that she assisted him by way of feeding, clothing or showering. She gave no evidence that she assisted him with personal mobility or assisted him with oxygen or medication as may have been required. Simply because there was a relationship between the plaintiff and the deceased does not mean that personal care was provided.

56 Although the deceased’s condition deteriorated prior to his death, this by itself cannot lead to any inference that personal care existed. There was thus no provision of personal care by the plaintiff for the deceased.

57 In these circumstances I am not satisfied that there was a close personal relationship.

58 I now turn to the question as to whether or not the plaintiff was an eligible person on the basis that she was a member of the household of the deceased and at some time dependent upon him. Given the admitted de facto relationship between 1981 and 1988 the plaintiff was certainly part of the household and given that the relationship occurred in the home of the deceased she was therefore dependent upon him for her accommodation. Even during the last period of their relationship after 1998 the deceased was dependent upon the plaintiff for her support in respect of the car. In these circumstances I am satisfied that the plaintiff is also an eligible person. However, in respect of her eligibility under this section it is necessary to consider s 9 (1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

59 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:-

“To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.”

60 These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. The main judgment was given by Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

61 When considering the matter on a traditional basis it is plain that there has been a seven-year de facto relationship followed by a close friendship during the further fourteen years.

62 It was the plaintiff who was with the deceased when he died and the deceased himself recognised his obligation to her. He promised her that she would receive the $40,000.00 he received from the Dust Diseases Tribunal and he also extracted promises from his two children to pay her $5,000.00. It is true that it would probably be unlikely that the plaintiff would have a claim of any substance under the De Facto Relationships Act, which she could have pursued in 1988. Each party owned their own home, they were both in employment and they had not contributed to the other’s property. Thus the failure to make a claim is not of significance. In my view, on the traditional test there are factors warranting the making of the application. I will now go on to consider the prospects of success.

63 In applications under the Family Provision Act the High Court in Singer v Berghouse (No 2) (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At pages 209-210 it said the following:

"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 difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc. were explained in Bosch v Perpetual Trustee Co Limited . 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. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The plaintiff’s situation

64 The plaintiff is aged 74 years and does not have any dependents. She has a life expectancy of some 13.6 years. She has a War Widows’ pension that covers her expenses but not unusual expenses.

65 The plaintiff has the following assets:

49 Pelican Street, Swansea $360,000.00 to $400,000.00

66 She has a debt to War Service Homes of $3,000.00.

67 I have expressed above the value of the plaintiff’s house at Swansea in the range of $360,000.00 and $400,000.00. This arises because of the evidence that occurred about the possible redevelopment of the plaintiff’s house. The valuation evidence is that if the property only has the existing dwelling on it then it has a present value of $310,000.00. However with two dwelling based on dual occupancy the value of the property would be $400,000.00. This difference in value is not of great significance in terms of the plaintiff’s claim apart from the matters to which I will refer to later.

68 The plaintiff did not, of course, contribute to the deceased’s estate and I have already dealt in detail with the 21-year relationship between the plaintiff and the deceased.

69 It is necessary to see how the plaintiff says she has been left without adequate and proper provision for her maintenance, education and advancement in life. The plaintiff puts forward areas where she considers that appropriate provision should be made for her. The first of these are a number of repairs to her existing home.

70 The plaintiff suggested that her existing home required repair as it suffered from wood rot and a quote in the sum of $17,840.00 was obtained. The defendants’ expert looked at the building from the outside and suggested that the cost of remedying damage to weatherboards was only $1,100.00 plus GST. It is apparent that this inspection does not take into account the replacement of the exterior of the building so that future maintenance could be kept to a minimum. In ordinary circumstances I would accept the plaintiff’s quote.

71 The plaintiff also advanced a cost to air condition the home at $3,298.00, replace the carpet in the home for $2,480.00. She also wished to construct a carport at a cost of $5,000.00.

72 There is a real question mark over the appropriateness of these claims as a result of the proposal for dual occupancy. The reason for this is that the plaintiff has sworn that if the dual occupancy proposal is approved it would involve her son and daughter-in-law constructing a new three bedroom brick veneer residence on the separate block into which the plaintiff would move once completed. Thereafter the son and daughter-in-law would renovate the existing home. Her son and daughter-in-law would meet these costs.

73 It is therefore apparent that if the proposal goes ahead the carport cannot be constructed because of the requirement for a driveway. In any event the son and daughter-in-law will be meeting the costs of any renovations to the existing home for their own purposes.

74 There was a report by a planning consultant, Synergy Environmental Planning Pty Limited whose evidence was to the effect that Council should approve the application in due course. The only contrary evidence is the plaintiff’s assertion that she does not think it is likely to be approved. This was based on the Council’s assessment of the first plans that were submitted for approval. The matter has moved on and in the absence of any other evidence it seems to me that it is likely that there will be approval in due course and thus the expenditure on the house is not a relevant need.

75 The next area is that the plaintiff wishes to replace her motor vehicle, which is old and unreliable. This is a reasonable claim, the only debate on the evidence being the extent of the funds that should be made available for this purchase. She obtained a quotation for a Corolla Ascent Auto in the sum of $26,365.00. That is for a vehicle that is probably larger than she needs. There was evidence that an appropriate vehicle would be available for $15,000 or less. The plaintiff has not considered these and I would have thought that an appropriate amount to provide for a car would be a sum of $20,000.00. Against this should be allowed the trade in value of her car in an amount of $5,000.00.

76 So far as the sum for contingencies is concerned the plaintiff suggests that an appropriate sum would be $50,000.00 to $60,000.00.

77 It is necessary to see what is the situation in life of other persons having a claim on the bounty of the deceased. In this case it is the two children of the deceased.

Situation of Shelly Maree Macorig (the first defendant)

78 Shelley is 34 years old, she is separated and has the care of her daughter. She has a property at Floraville Road, Floraville. The only evidence of value is that it is worth $248,000.000. She has a car worth $2,500.00, furniture worth $5,000.00 and electrical goods worth $6,000.00. Her only liability is a mortgage to the Northern Cooperative Housing Society Group of $39,504.58. She purchased this house from the distribution in the estate. She receives a pension and child support totalling $352.50 per week and her weekly expenses are $315.00 per week.

79 Shelley draws attention to the fact that her car is 18 years old and she would like to replace it with a Holden car for $27,820.00.

80 Shelley also referred to the fact that she needed $3,648.00 for a lounge suite and her house required electrical work, carpet, air-conditioning and painting. The cost in respect of the air-conditioning was $2,799.00, electrical work $4,240.50 and painting in the order of $6,000.00. The cost of a new carpet was estimated at $1,991.00. She also referred to unquantified costs for the continuing and tertiary education of her daughter.

Situation of Murray Ham (the second defendant)

81 Murray Ham is 34 years of age. He is married and has the care of three children. One child is his wife’s child from a former marriage born in1989 and the others are his twins born in 1995. Murray is a fisherman operating out of Newcastle harbour and his wife manages the accounting side of his business and works part-time as a veterinary nurse. His income is variable but they estimate their net income at $1,280.00 per week and their regular expenses at $1,250.00 per week. The property that they own is as follows:

82 They have a mortgage on their property of $145,000.00 and Murray notes that his trawler requires a new engine, which will cost some $75,000.00. He has a need to build a fishing shed to store his fishing gear and this will cost some $28,000.00. They are looking to expand or build a new house on their property to take care of their family, which will be somewhat expensive.

Consideration of the claim

83 It is plain that the plaintiff has a need for a car and some funds for contingencies to assist her in her advancing years. The two beneficiaries are not in a strong financial position and notwithstanding the distributions that they made they both have to make various expenditures.

84 It should be noted that the deceased himself in the arrangements, which he contemplated but did not put into practise, wished to provide something for the plaintiff. In the circumstances it seems to me that an appropriate legacy for the plaintiff would be the sum of $60,000.00.

85 The orders that I make are as follows:

1. The plaintiff to receive a legacy out of the estate of the deceased in the sum of $60,000.00.
2. The plaintiff’s costs on the party and party basis and the defendants’ costs on an indemnity basis be paid or retained out of the estate of the deceased.
3. The plaintiff’s costs be paid in priority to the costs of the defendants out of the estate of the deceased.
4. Interest to run on the legacy in order 1 at the rate provided for under the Wills, Probate & Administration Act 1898 (NSW) if the legacy is not paid within one month of today’s date to be paid on and from that date.

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Last Modified: 11/01/2004

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Citations

Bogan v Macorig [2004] NSWSC 993

Cases Citing This Decision

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Cases Cited

4

Statutory Material Cited

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Bar-Mordecai v Hillston [2004] NSWCA 65

Light v Anderson [1992] NSWCA 136

Bar-Mordecai v Hillston [2004] NSWCA 65

CITATION:	Bogan v Macorig [2004] NSWSC 993
HEARING DATE(S):	30, 31 August 2004 1 September 2004 18 October 2004
JUDGMENT DATE:	28 October 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Master Macready at 1
DECISION:	Paragraph 85
CATCHWORDS:	Family Provision. Application by a former de facto parnter for provision. Eligibility in issue. Plaintiff found to be eligible and part of the household and partly dependent. Order for legacy.
PARTIES :	Brenda Iris Bogan v Shelley Maree Macorig and Murray Alexander Ham (Estate of Raymond Walter Ham)
FILE NUMBER(S):	SC 1923 of 2003
COUNSEL:	J.R. Wilson SC for plaintiff G.E. Underwood for defendants
SOLICITORS:	Moroney Rutter Mantach for plaintiff Thomas Mitchell Partners for defendants