Burton v Moss

[2010] NSWSC 163

CITATION:	Burton v Moss [2010] NSWSC 163
HEARING DATE(S):	15/02/2010
JUDGMENT DATE :	22 March 2010
JURISDICTION:	Equity Division
JUDGMENT OF:	Macready AsJ at 1
DECISION:	1. In lieu of the provisions in clauses 6 and 7 of the will of the deceased the following provisions shall apply: (b) A legacy of $250,000 to the Gzira Parish Church, Manoel Street, Gzira, Malta. (b) The residue of the estate to the plaintiff absolutely. 2. Interest on the legacy in 1(a) to be paid at the rates provided for in the Probate & Administration Act 1898 on and from three months from today’s date. 3. The plaintiff’s costs on the ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased. 4. I order time be extended.
CATCHWORDS:	Family Provision. Application for provision by same sex partners who was left a life estate. Application out of time by 11 years. Consideration of explanantion and change of heart. Time extended and order in favour of the plaintiff.
CATEGORY:	Principal judgment
PARTIES:	Robert Edward Burton v Ronald William Moss
FILE NUMBER(S):	SC 2352/08; 2008/278299
COUNSEL:	Mr M Meek SC for plaintiff Mr J Armfield for defendant
SOLICITORS:	Tress Cox Lawyers for plaintiff Maurice Buckley CT Poole & Son for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Monday 22 March 2010

2352/2008 Robert Edward Burton v Ronald William Moss (Estate of the late Raymond Lawrence Dominic Cuschieri)

JUDGMENT

1 His Honour: this is the hearing of an application under the Family Provision Act 1982 (“the Act”) in respect of the late Raymond Lawrence Dominic Cushieri who died on 15 December 1995, aged 42 years. He was survived by the plaintiff with whom the deceased had lived in a de facto relationship for many years.

The last will of the deceased

2 By his will dated 7 December 1995, probate of which was granted to the defendant on 6 November 1996, the deceased made the following provisions.

3 The deceased gave his sister Margaret Fenech (“Margaret”):

The proceeds of the Mid Med bank account (but for $8,000).

The painting of the Monks in the Gallery.

All photos and photo albums.

4 The deceased requested Margaret Fenech to:

Give $4,000 to his nephew Neil.

Give $2,000 for a Mass for the repose of his sole at the Mt Carmel Parish Church, Gzira, Malta (the Church).

Invest $2,000 for the purchase of flowers for each feast occurring on the second Sunday in July each year.

5 The residue of the estate was to be held on trust to allow the plaintiff the use and enjoyment of XX Langlee Avenue, Waverley and its contents for life. The plaintiff was to be responsible for the maintenance of the property and payment of outgoings.

6 On the death of the plaintiff:

Half of the contents to the plaintiff’s estate and the other half to form part of residue.
The residue to be applied to arrange for a pipe organ to be purchased and given to the Church.
The balance to the Church for artistically decorating the Church.

7 During the relationship the deceased had expressed a desire to have sufficient property to ensure the installation of a pipe organ in the Church at Gzira. Gzira was the deceased’s hometown where most of his family continue to reside.

Assets in the estate

8 At the time of death, the deceased owned the following assets according to the inventory of property:

XX Langlee Avenue Waverley $550,000.00
St George Bank account $45,832.97
Shares $10.00
Endeavour Credit Union:
Savings account $407.78
Term Deposit $35,000.00
Term Deposit $45,913.16
Superannuation $5,470.15
Mid Med Bank Malta $42,592.73

$725,226.79

9 The deceased had no liabilities.

10 The defendant administered the estate and paid the proceeds of the Mid Med bank account to Margaret. The estate still holds the realty which is now valued at $1,500,000.00. The plaintiff pursuant to the terms of the will occupies the Waverley property. There are funds in the St George Bank of $78,163. There are outstanding costs and commission of $35,175. The defendant’s legal costs are estimated at $40,266.41 and the plaintiff’s costs at $107,508.

Background history

11 The plaintiff was born in 1947 and the deceased in 1953.

12 In 1972 the plaintiff and the deceased commenced a de-facto relationship. They resided at XX Cross Street, Waverley.

13 In June 1983 the deceased purchased a property at Langlee Ave, Waverley. The plaintiff and the deceased commenced repair and renovation of the property.

14 In February 1987 the deceased and the plaintiff were both diagnosed as suffering from HIV. It was in 1988 that the deceased first made a proposal regarding the donation of an organ to the Church in Malta. In May 1995 there was further correspondence regarding the organ.

15 As I have mentioned, it was on 7 December 1995 that the deceased made his last will and he died on 15 December 1995, aged 42 years.

16 As also mentioned earlier, on 16 November 1996 probate was granted to the defendant.

17 In January 1997 the plaintiff attended the office of the defendant and discussed generally the possibility of him buying the Waverley property and dismantling the trusts contained in the will. Nothing came of these discussions.

18 In March 1997 Margaret was paid the proceeds of the Mid Med Bank account.

19 On 15 May 1997 the time for making an application under the Act expired.

20 On 22 October 1997 the plaintiff attended the defendant’s office. At that stage the priest at the Church was apparently in the process of obtaining an organ apart from the provision in the deceased’s will.

21 On 28 June 1999 the amendment of the Family Provision Act by the Property (Relationships) Legislation Amendment Act 1999 No 4 became law and accorded increased rights to same sex couples.

22 In 2001 the back room of the Waverley property collapsed into one corner. The property was repaired. In August 2001 orders were made passing accounts and allowing commission for the period from the deceased’s death up to 31 July 2000.

23 On 22 May 2002 the plaintiff attended at the defendant’s office and discussed at length various repairs and works to the Waverley property and the position regarding the estate generally.

24 On 13 October 2002 the plaintiff spoke further with the defendant about the estate and indicated that he had spoken with Margaret and decided not to do anything about applying to the Court at that stage. This was apparently about the proposal to seek a variation of the trusts in the will.

25 Between November 2002 and May 2005 the defendant had contact with the plaintiff in connection with repairs and works at the Waverley property.

26 On 17 May 2006 the plaintiff conferred with the defendant about the estate. He raised the question of whether he could challenge the will and was told that he may have a limitation problem.

27 In June 2006 the plaintiff initially made contact with Warwick Hart, a solicitor from Shaw McDonald. He did not proceed to obtain his services.

28 In March 2007 the plaintiff initially made contact with solicitors at Tress Cox, his present solicitors. Eventually the summons in this matter was filed on 16 April 2008. Early in that year significant plumbing works were undertaken to address a subterranean water flow that was seeping through the sandstone footings at the front of the house.

Eligibility

29 As I have mentioned the Act was amended with effect from 28 June 1999 by the Property (Relationships) Legislation Amendment Act 1999 No 4 to modify the categories of claimants. The Act as amended applies to estates of persons dying before the amendments, provided the application was made after 28 June 1999: see Jurd v Public Trustee [2001] NSWSC 632.

30 It is clear that the deceased and the plaintiff had lived in a de facto relationship from 1972 until the deceased’s death. The plaintiff is thus an eligible person.

Extension of time

31 Section 16 of the Act is as follows:

“16 Time for application for provision
(1) In this section, "prescribed period" in respect of an application in relation to a deceased person, means:

(a) where the Court has, in an order made under section 17, specified a period in relation to the application that period, or
(b) in any other case the period of 18 months after the death of the deceased person.

(2) An order under section 7 shall not be made unless the application for the order is made within the prescribed period in respect of that application or within such further period as the Court may, having regard to all the circumstances of the case but subject to subsection (3), by order, allow.
(3) The Court may not make an order under subsection (2) allowing an application in relation to a deceased person to be made after the end of the prescribed period unless:

(a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or
(b) sufficient cause is shown for the application not having been made within that period.

(4) The Court may make an order under subsection (2) with respect to an application in relation to a deceased person whether or not:
(a) the prescribed period in respect of the application in relation to the deceased person has expired,
(b) the application for the order under that subsection was made before that period expired, or
(c) the application in relation to the deceased person has been made.
(5) Notwithstanding subsections (2) and (3), where administration has been granted in respect of a person whose date of death is so uncertain as to make it impossible to apply subsections (2) and (3) with respect to an application in relation to the person, the Court may, whether or not the application in relation to the person has been made, by order, allow the application in relation to the person to be made within such period as it thinks reasonable and such an order has effect according to its tenor.”

32 There are a number of cases which refer to the principles to be applied in an application for an extension of time. In Re Guskett [1947] VLR 212 the following was said:

"It is necessary for the applicant to make out a case that will justify the grant of the indulgence sought. He is to show reasons why his failure to apply within the time allowed should be excused. Every case will have to be dealt with on its own facts but it would seem necessary for the applicant to satisfy the court that the circumstances are such as to make it unjust for him to be penalised for being out of time. As moreover he is seeking an indulgence he should apply promptly for an extension of time."

33 Young J in several cases has dealt with the principles governing application to extend time under this Act. In Massie v Laundy (Supreme Court of New South Wales, Young J, 7 February 1986, unreported) his Honour indicated that when looking at “sufficient cause” under 16(3) of the Act the factors which one looks at include the following:

(a) is the reason for making a late claim sufficient?
(b) will the beneficiaries under the will be unacceptably prejudiced if the time were extended?
(c) has there been any unconscionable conduct on either side which would enter into the equation?

34 Apparently he also accepts a view that was expressed by Needham J in Fancett v Ware (Supreme Court of New South Wales, Needham J, 3 June 1986, unreported) that there is no purpose in extending the time with respect to a claim that must fail. In Phillips v Quinton (Supreme Court of New South Wales, Powell J, 31 March 1988, unreported) Powell J when considering the matter at the substantive hearing leant to the view that a plaintiff seeking an extension of time under the Testators Family Maintenance Act must now demonstrate not merely a reasonable prospect but at least a strong probability of obtaining substantive relief. That view was not accepted by Hodgson J in Basto v Basto (Supreme Court of New South Wales, Hodgson J, 8 September 1989, unreported).

35 In De Winter v Johnstone (Court of Appeal, 23 August 1995, unreported) Powell J referred to this matter and in particular the fact that nowadays the application for extension of time is invariably dealt with at the time of the application for substantive relief. He said at page 23:

"In such a case, so it seems to me no extension of time ought to be granted unless it be established (inter alia) that the applicant for an extension of time would, in the event of that extension being granted, be entitled to an order for substantive relief."

36 Sheller J considered that it was only necessary to show that the application was not bound to fail. Cole JA seems to have adopted the parties’ approach of looking at the strength of the plaintiff’s case.

37 The case of De Winter v Johnstone is also useful in that Sheller J commented on the meaning of “unconscionable”. He was dealing with an appeal from Master McLaughlin (as his Honour was then) and he referred to the Master's comments to the following effect:

" Unconscionable conduct in this context of course relates to such matters as whether the plaintiff has made an informed decision not to make a claim against the estate and has then decided after the limitation period has expired to make such a claim on account of some change in her financial and material circumstances which has occurred after the expiry of the limitation period."

38 With regard to the Master’s comments, his Honour observed:

“…with all respect I would not have thought this to have been unconscionable conduct. No doubt it depends on the circumstances. However the concept of unconscionable conduct is to be directed towards a deliberate holding off designed to lull beneficiaries into false sense of security. There is nothing to suggest anything of that sort in the present case."

39 There is no unconscionable conduct on the part of the plaintiff and the prejudice to the beneficiary, which arises, needs to be addressed. Apart from the fact that the beneficiary is now at risk of losing its bequest there is no evidence to suggest that the beneficiary has altered its position in the expectation of receiving the bequest. Indeed it ignored part of the bequest and proceeded to raise its own funds for the installation of the organ rather than waiting for the gift to fall into possession.

40 It was said that there had been prejudice because with the passage of time there has been a change in the law. In the circumstances of this case the plaintiff would have been an s 6(d) applicant under the Act who would have been easily able to establish factors warranting the making of the application. I do not think that this prejudice exists.

41 I turn to consider the explanation for the delay. At the time of the deceased’s death and on the basis of medical advice the plaintiff had received, he did not expect to live for long thereafter. The treatment of HIV/AIDS was in its infancy and the future of such treatment was unknown. His doctor advised the plaintiff that his future was, at best, uncertain. At the time many of the plaintiff’s friends had died within a short period of diagnosis. The plaintiff thought that the deceased and he would both die within a short time after diagnosis.

42 In January 1997 the plaintiff attended the defendant at his office and discussed amongst other things, buying the Waverley property. Some time later that year the plaintiff went to Malta and found out that the parish priest was not prepared to wait any longer for the bequest and he had started a campaign to raise funds for the new organ. When the plaintiff discussed this with the defendant he made the comment that he might even consider selling the house to raise to raise the $280,000. Thereafter the plaintiff and the deceased’s sister were in contact with the Church.

43 In May 2002 the plaintiff attended the defendant’s office to discuss various repairs to the house. At this stage he advised the defendant that the organ was now in the Church and that the congregation had paid for it. There was a suggestion from the deceased’s sister, Margaret, that perhaps a tabernacle could be provided for the Church now that the congregation had paid for the organ. In response to this suggestion the defendant suggested that there would be need to be an application to the Supreme Court to vary the will which although difficult might be worthwhile. Plainly this was not advice about making an application under the Act. In September of that year the plaintiff and Margaret decided not to proceed with this proposal.

44 In May 2006 the plaintiff attended the defendant’s office and referred to the change in the entitlement of de facto partners and the fact that he thought he should be getting more out of the estate. He also mentioned that the house had increased in value from $500,000.00 to $1,500,000.00. The defendant advised the plaintiff that he might have statute of limitations problem. He did not discuss the provisions of the Act as he had no detailed knowledge of the Act. He suggested that the plaintiff obtain further advice.

45 In June 2006 the plaintiff obtained advice from Mr Hart. However, the plaintiff did not proceed with his services. By March 2007 the plaintiff was in contact with Tress Cox Lawyers his present solicitor.

46 It is plain that in recent times the plaintiff has changed his attitude to the suitability of the provision the deceased made for him in his will.

47 In cross-examination it became apparent that until about a year ago the plaintiff did not understand that once he ceased to reside in the property it would become the property of the Church. The plaintiff’s understanding of his entitlement shortly after the death of the deceased was expressed clearly in cross-examination on pages 23 and 24 of the transcript.

“Q. I just want to explore that with you. As I understand your evidence you received a copy of his will a day or two after he passed away?
A. Sure.

Q. I take it you read the will at that time?
A. Briefly.

Q. You were aware that you had a right to live in the property for your life?
A. Yes.

Q. And that after you either passed away, ceased to live there in one form or another, subject to some gift of contents, it went to the church correct?
A. I never understood that will, that everything went to the church to be quite honest.

Q. One thing you did understand was you could only live there for your life?
A. I understood yes that I could live there.

Q. One thing did you understand from the moment you received it, that it hadn't been left to you as an out right gift correct?
A. Yes.

Q. You understood that once you had ceased to reside there, it became the church's property correct?
A. I understood that probably only about a year ago. I did not understand that from the very beginning.

Q. Can I suggest to you that you were perfectly content with having a right to live there for life in 1995, were you not?
A. Yes because I thought I would be dead. It wasn't so important for me whether I owned the property or I didn't own the property. The chances of living were very very slim. “

48 In his evidence the plaintiff put his change of heart from that position in this way. In the transcript at page 16 he said:

“Q. Mr Burton, just going back to the meeting in May 2006 between you and Mr Moss, I suggest to you that one of the reasons why you changed your mind and decided you might want to challenge the will was because you appreciate the house had tripled in value. Do you agree or disagree with it?
A. I agree. “

49 Later in the transcript at page 27 he said:

“Q. What do you say about the balance of the money going to the church for artistic decoration?
A. I understand that part. But, we are talking at the time of death the property was $550,000. It was not a matter. It there would be a little money after you installed an organ with most of those funds.

Q. Is this the real problem? The real problem is this: You have always understood there was going to be an organ and the rest of the money would go to artistic decoration but now you are now unhappy with the amount of money because of the increased value of the house?
A. The thing that I am unhappy about is there is no organ.

Q. Can we cut to the chase? The real motivation for your application are 2 things. Firstly that there is no organ is that right?

A. That's correct.

Q. That is the real reason?

A. And there is no chance.

Q. The real reason you have sought to make an application is not because you regard the will as not dealing with your needs but rather because you are unhappy what the organ hasn't been installed is that right?

A. 1 reason.

Q. The other reason is you have always understood that the balance of the money was going go to artistic decoration but you thought when the house has only $550,000 there wouldn't be much for that after the organ was installed but now that it is worth 1 and half million dollars you do not want one and a half million spent on artistic decoration?

A. I don't think it is a fitting bequest for someone who died wanting an organ.

Q. Is the answer to my question you are resentful of the money - amount of money to be spent on an artistic benefit?

A. I don't think it is a bequest. It is like a building fund.

Q. What do you mean?

A. It is like a building fund for an old building. It is not what Raymond wanted. What Raymond - as I understood the situation has changed dramatically. I have lived a lot longer and you have heard my side of the story.

Q. So, it is not a concern that the will doesn't make adequate provision for you which has led you to bring these proceedings but rather your disapproval of what is going to happen with the money is that correct?

A. Correct yes. “

50 In 1997 the plaintiff discovered that the Church intended raising its own funds for the purpose of installing the organ. By 2002 the organ had been installed in the Church.

51 There was also criticism of the time taken for proceedings to be commenced once the plaintiff was told he had a limitation problem. To be fair to him the advice was given in the most general terms and he was not told what the Act provided on the matter. This was because Mr Moss the defendant, although a solicitor, did not practice in the area and thus did not know the terms of the provisions.

52 The plaintiff’s explanation for the delay from the time he first contacted his present solicitors and the time he commenced proceedings was that he was busy with his business and it was a matter which required some careful thought before he took that drastic step. This is not an adequate explanation and in ordinary circumstances might well be fatal to an application. However, because of the interposition of the life estate there has been no prejudice to the beneficiary.

53 In this case one of the reasons for the delay was the change of heart on the part of the plaintiff. There are a number of cases where a change of heart has been held to be not a sufficient reason. In Re Lauer [1984] VR 180 it was held that the mere fact that the applicant’s financial position had deteriorated cannot of itself be a ground for granting an extension of time under the Act nor could the mere fact that the value of the estate had been inflated beyond what might have been expected at the date of the testator’s death be such a ground. The case was decided when the relevant Victorian law provided that when considering whether the provision is inadequate the Court must have regard to the situation at the date of death of the deceased and not at the hearing which is the present position in this State. For this reason the case should be regarded with caution.

54 Re Lauer was followed by Young J in Bearns v Bearns-Hayes (Supreme Court of New South Wales, Young J, 6 May 1997, unreported). In that case for a period of two years until late 1994 the plaintiff had no intention of making a claim as she had assurances from her family that her position with her home was secure and she had sufficient income. In late 1994 arguments broke out in the family as a result of which the plaintiff felt abandoned by her family and that she could not rely on the loose arrangements previously in place. His Honour found that this was not a sufficient reason.

55 In Zirkler v McKinnon [2002] NSWSC 285 I refused an extension of time on the basis that an applicant who knew of her ability to make a claim decided not to and then later changed her mind after the period had expired.

56 In Lewis v Lewis [2001] NSWSC 321 Hodgson J in dealing with a Family Provision Act application where the plaintiff instituted proceedings more than a year after the eighteen month limit prescribed by s 16 had expired commented at paragraph 83:

"The wording of that provision is a little curious. If read literally, it would appear to be a tautology: the application was not made within the prescribed period, so in some sense there must have been sufficient cause for this to happen. The expression "sufficient cause" must be taken to mean "sufficient explanation" or "sufficient justification or excuse". The question then is, sufficient for what? Again, it cannot be sufficient for the application not having been made, because again that would seem to give rise to a tautology. Rather, it must be something like "sufficient in all the circumstances to justify the granting of an extension of time"."

57 In Zirkler at paragraph 26 I commented that on its face s 16(3) only requires that sufficient cause be shown as to why the application was not made within the prescribed period rather than the period up to the filing of the summons. As was pointed out in Dare v Furness (1998) 44 NSWLR 493 at 501 it has always been necessary to consider what delays occurred after the prescribed period expired. It is important to look at the total period of delay and the reasons therefore in the exercise of the general discretion given to the Court under s 16(2).

58 In this case the factual circumstances in which the plaintiff found himself immediately after the date of death of the deceased were such that he had no need to make an application at that time as he could not envisage living long enough to need to own a house. It was only recently, some ten or twelve years later, that it became obvious to the plaintiff that he was going to live into old age with all the uncertainties that that involved. Importantly because of the interposition of the life estate there can be no prejudice to the beneficiary because the Church’s interest does not fall into possession until, inter alia, the death of the plaintiff. Although there has been a change of heart on the part of the plaintiff the view of the plaintiff that he was happy with the provisions in the will was not formed with the knowledge that he could make a claim under the Act. This case is far removed from the factual situation in Zirkler. In all the circumstances I am satisfied that it is appropriate for me to extend time.

Eligibility

59 The plaintiff is an eligible person. In applications under the Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a Court must take. At page 209 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 or 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 in life

60 The plaintiff is 57 years of age, single with no dependants.

61 The plaintiff is the sole director and shareholder of Burton & Cook Pty Limited ACN 093 941 603 (“Burton & Cook”) which operates as an importer and retailer of linen and kitchenware and a fashion retailer out of premises at Queen Street Woollahra. He manages the retail outlet of the business from those premises. He works on a full-time basis, five to six days a week and on average 50 hours a week. In the event he has staff shortages he works additional hours. He is also the sole director and shareholder of Leckwon Pty Ltd. Leckwon operates as an investment company.

62 The plaintiff owns the following assets:

(a)	XX Bligh Street, Sydney being the property described in Folio Identifier 26/SP58859	$ 650,000.00
(b)	XX Brighton Parade, Culburra Beach being the property described in Folio Identifier XXXX/XXXX
Owned in equal shares as tenants in common with Anthony John Madeley Estimated value $320,000 – 50% share $160,000	$ 160,000.00
(c)	Funds in St George Bank	$ 29,000.00
(d)	Funds in NAB	$ 1,200.00
(e)	ING Account	$ 3,000.00
(f)	Furnishings and household effects	$ 30,000.00
(g)	Audi A90 (1990) motor vehicle	$ 900.00
(h)	Loan to Burton & Cook Pty Limited	$ 205,607.00
(i)	Loan to Leckwon	$ 27,790.00
(j)	Shares in Private Companies:
(i) Leckwon Pty Limited ACN 002 949 162 (2 Ord shares)	$ 261,184.00
(ii) Burton & Cook Pty Limited ACN 093 941 603 (120 Ord shares)	($83,828.00)
TOTAL ASSETS		$1,284,853.00

63 The plaintiff has the following liabilities:

(a)	Mortgage to NAB secured over Culburra	$103, 000.00
(b)	Mortgage to NAB secured over Bligh Street (interest only loan)	$450, 000.00
(c)	CBA Mastercard Citibank American Express NAB Mastercard ANZ Visa	$30,876.00 $4,960.32 $8,415.47 $12,466.33 $29,427.19
TOTAL LIABILITIES		$639,136.31

64 On 15 October 2008 Leckwon sold the property at XX/XX Balfour Road, Rose Bay (“the Rose Bay property”). The net proceeds of the sale of the Rose Bay property amounted to $352,350.16. Principally the net proceeds of the sale of the Rose Bay property were loaned by Leckwon to Burton & Cook. This loan was applied to reduce the liabilities of Burton & Cook.

65 Burton & Cook has a current liability to the plaintiff in the sum of $283,376.00 and to Leckwon Pty Limited in the sum of $315,559.

66 The total assets owned by Leckwon comprise an unsecured loan to Burton & Cook in the sum of $315,559 and a loan to the plaintiff in the sum of $27,790.00. The estimated taxation liability owed by Leckwon for the financial year ended 30 June 2009 is in the sum of $82,165.

67 The loans owed to the plaintiff by each of Burton & Cook in the sum of $283,376 and Leckwon in the sum of $27,790 cannot be immediately repaid to the plaintiff. A proportion of the plaintiff’s credit card debts is attributable to business expenses.

68 The Plaintiff has gross weekly income as follows:

(a)	Burton & Cook	$92.30
(b)	Bank interest	$22.75
(c)	Rental received on Bligh Street	$1,194.00
(d)	Leckwon Pty Ltd (annual fee $7,000)	$ 154.00
TOTAL WEEKLY INCOME		$1,420.91

69 The plaintiff’s current weekly expenses total $1,704 so he is effectively living on credit.

70 So far as health is concerned he is HIV positive. He will not recover from HIV and will continue throughout his life to take the extensive medication that he is currently prescribed. He consults Dr Merrilyn McMurchie who is his general practitioner and an HIV specialist. On Dr McMurchie’s advice he manages his health by rigid compliance with the medication regime prescribed by her, a healthy diet, exercise, stress management and rest. He attends for regular medical examination and blood tests which he will require for the rest of his life.

71 The plaintiff’s future health is uncertain. To date he has yet to have an AIDS defining diagnosis but he is at risk of contracting an AIDS related illness. The plaintiff also suffers from ischaemic heart disease. In 2008 he underwent an angiography. He has been advised he will require further such procedures in the future. The symptoms he experiences are exacerbated because he is HIV positive. The plaintiff also suffers from thickening of tendons in each of his hands. He requires surgery to correct this condition. This has not been costed.

72 It is clear that the plaintiff had a long and happy relationship with the deceased.

Discussion

73 It is necessary to see how the plaintiff says that he has been left without adequate and proper provision for maintenance education and advancement in life. In this regard he refers to the following matters:

The condition of the Waverley property.
His health.
His accommodation.
General advancement in life.

74 The Waverley property is in need of repair. There are insufficient funds in residue to meet the anticipated costs associated with the Waverley property. There is a quote from Simpson Building Group in respect of the building works required for Waverley (other than the plumbing and re-wiring) for $73,852.57. This is necessary work.

75 In the event of the plaintiff contracting an AIDS defining illness, he will require high level nursing care. He does not have extended family upon whom he can rely for support. There is evidence regarding the likely cost of home care. The cost for a nursing assistance starts from $42.35 per hour up to $114.95 per hour for a registered nurse on Sundays. The cost of an overnight carer ranges between $176 on weekdays to $334.40 on weekends. He will also require domestic assistance with cleaning, meal preparation, shopping, washing and ironing and assistance with transport to appointments.

76 The plaintiff’s preference, given the opportunity, is to remain residing in the Waverley property in the immediate future. However, he wishes to be in a position to independently decide when it is time for him to move from the property that has been his home for some 27 years.

77 The plaintiff understands that there is uncertainty as to outcome of these proceedings and realises that if things do not turn out as he wishes in respect to his health then he will need to seek alternative accommodation close to St Vincent’s hospital which specialises in his particular health needs. His general practitioner’s surgery is located close to St Vincent’s Hospital. He would like to have the amenity of two bedrooms, level access and parking.

78 There is evidence from the plaintiff of properties in his preferred areas being for sale at between $750,000 and $1,500,000. The defendant also gave evidence on this aspect. A realistic estimate of the cost of a mid-range apartment would be $900,000. Stamp duty on the purchase of the property would also be required.

79 The plaintiff has purchased a 1990 Audi for $900. However, it is likely that in the next few years the care will need to be replaced. The cost of a vehicle that would suit his needs is in the order of $30,000.

80 The plaintiff’s whitegoods were purchased in or about 2004. In due course these will require replacement. He estimates the likely cost of replacing whitegoods to be:

Refrigerator	$1,800
Washing Machine	$800
Clothes Dryer	$500
Microwave over	$200

81 His kitchen appliances will also require replacement. He estimates this will cost in the vicinity of $1,000.

82 The plaintiff’s occupation requires him be on his feet most of his working hours. He finds the work to be physically demanding and difficult. He wishes to plan a transition into retirement. He would like to continue working for as long as he is well. However, he is unable to continue working at his current level as he finds he is exhausted and his health suffers. In moving to retirement, the plaintiff wishes to reduce to part-time employment. Given the opportunity, the plaintiff would immediately reduce to part-time employment with a view to retiring at age 65 years.

83 It is necessary to consider the situation in life of others having a claim on the bounty of the deceased. In this case it is the Church in Malta. The evidence is clear that the deceased had an attachment to the Church from his childhood days. Notwithstanding his migration to Australia he continued to attend the Church when he travelled to Malta every two years. The evidence suggests the Church is showing signs of deterioration but there is no estimate of the cost of rectifying such deterioration. The Church would like to redecorate parts of the building at a cost of 575,900 euros (A$859,423). This sum includes sum of 58,200 euros (A$86,852) to complete the facade of the organ in the Church.

84 It is plain that the deceased’s main intention was to install an organ in the Church and that other matters were subsidiary to that intention. The funds to finish the organ obviously would accommodate the deceased's desire in part and no doubt some funds would be appropriate to allow some additions to the Church.

85 It seems to me that if the Church were to receive $250,000 this would be adequate. In these circumstances and in the absence of any other beneficiaries or persons dependent upon the deceased’s bounty, it would be appropriate for the plaintiff to receive the balance of the estate after deduction of costs and expenses and payment of a legacy to the Church of $250,000.

86 I make the following orders:

1. In lieu of the provisions in clauses 6 and 7 of the will of the deceased the following provisions shall apply:

(a) A legacy of $250,000 to the Gzira Parish Church, Manoel Street, Gzira, Malta.


(b) The residue of the estate to the plaintiff absolutely.

2. Interest on the legacy in 1(a) to be paid at the rates provided for in the Probate & Administration Act 1898 on and from three months from today’s date.

3. The plaintiff’s costs on the ordinary basis and the defendant’s costs on an indemnity basis be paid or retained out of the estate of the deceased.
4. I order time be extended.

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