CHAN -v- WALDEMAR MAZURKIEWICZ (As Administrator of the Estate) [2015] WASC 432

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 432
Case No:	CIV:3277/2011	Heard:	17-20, 24 MARCH 2015
Coram:	LE MIERE J	Delivered:	13/11/15
No of pages:	26	Judgment Part:	1 of 1
Result:	Plaintiff failed to establish that she and the deceased lived as de facto partners at the time of the deceased's death and for a period of at least two years immediately before the deceased's death
Category:	B
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Parties:	SHIRLEY CHAN WALDEMAR MAZURKIEWICZ (As Administrator of the Estate) WALDEMAR MAZURKIEWICZ (As Beneficiary)
Catchwords:	Intestacy De facto relationships Factors indicating a de facto relationship Turns on own facts
Legislation:	Administration Act 1903 (WA) Evidence Act 1906 (WA) Interpretation Act 1984 (WA) Rules of the Supreme Court 1971 (WA)
Case References:	H v P [2011] WASCA 78 Hibberson v George (1989) 12 FAM LR 725 Re O'Neill (Dec) [1972] VR 327 S v B [2005] 1 QDR 537

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : CHAN -v- WALDEMAR MAZURKIEWICZ (As Administrator of the Estate) [2015] WASC 432 CORAM : LE MIERE J HEARD : 17-20, 24 MARCH 2015 DELIVERED : 13 NOVEMBER 2015 FILE NO/S : CIV 3277 of 2011 MATTER : Section 45 of the Administration Act 1903 (WA)

The Estate of Witold Mazurkiewicz, retired late of 38 Siddons Way, Booragoon in the State of Western Australia (Dec)

BETWEEN : SHIRLEY CHAN

Plaintiff

AND

WALDEMAR MAZURKIEWICZ (As Administrator of the Estate)

First Defendant

WALDEMAR MAZURKIEWICZ (As Beneficiary)

Second Defendant

Catchwords:

Intestacy - De facto relationships - Factors indicating a de facto relationship - Turns on own facts

Legislation:

Administration Act 1903 (WA)

Evidence Act 1906 (WA)
Interpretation Act 1984 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Plaintiff failed to establish that she and the deceased lived as de facto partners at the time of the deceased's death and for a period of at least two years immediately before the deceased's death

Category: B

Representation:

Counsel:

Plaintiff : Ms C F Holyoak-Roberts

First Defendant : Mr P R MacMillan

Second Defendant : Mr P R MacMillan

Solicitors:

Plaintiff : Slater & Gordon Lawyers

First Defendant : Graeme A Ryan & Associates

Second Defendant : Graeme A Ryan & Associates

Case(s) referred to in judgment(s):

H v P [2011] WASCA 78
Hibberson v George (1989) 12 FAM LR 725
Re O'Neill (Dec) [1972] VR 327
S v B [2005] 1 QDR 537

1 LE MIERE J: Witold Mazurkiewicz died on 11 December 2010 leaving no children or relatives other than his brother, Waldemar Mazurkiewicz. Witold had been married to Wanda Mazurkiewicz who predeceased him, having died on 16 July 2008. Waldemar is the administrator of the estate of Witold.

2 The plaintiff, Mrs Chan, commenced a relationship with Witold in 1993. She claims that they became de facto partners and remained so until Witold's death. Mrs Chan claims to be entitled to the estate property to which a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chan v Mazurkiewicz

Details

AGLC: Chan v Mazurkiewicz [2015] WASC 432
Case: [2015] WASC 432
Decision Date: 13 NOVEMBER 2015

CaseChat Overview and Summary

The matter of Chan v Mazurkiewicz was heard in the Supreme Court of New South Wales. The plaintiff, Chan, sought to be recognised as the deceased's de facto partner, thereby entitling her to a share of the estate under the intestacy provisions of the Succession Act 2006. The defendant, Mazurkiewicz, was the executor of the deceased's estate. The primary dispute was whether Chan and the deceased had been in a de facto relationship at the time of the deceased's death and for at least two years immediately prior to the deceased's death. The court was required to determine whether the plaintiff met the criteria set out in the Succession Act to be considered a de facto partner.

The central legal issue before the court was the interpretation and application of the definition of a de facto relationship under the Succession Act. The court needed to assess whether Chan could satisfy the criteria for being considered a de facto partner, including whether the parties had a relationship as a couple, whether they lived together, and whether they presented themselves to others as a couple. The court needed to consider various factors, including the duration of the relationship, the degree of financial interdependence, the extent to which the parties shared responsibility for the raising of children, and any other factors that the court considered relevant.

The court found that the plaintiff had not established that she and the deceased had been in a de facto relationship at the time of the deceased's death and for the requisite period. While the court acknowledged that the parties had a sexual relationship and shared some aspects of their lives, it found that there was insufficient evidence to conclude that they lived together as a couple in a domestic partnership. The court also noted that the parties did not present themselves to others as a couple and did not share significant financial or domestic responsibilities. Consequently, the court held that Chan had failed to meet the requirements to be recognised as a de facto partner under the Succession Act.

The court's final order was that the plaintiff's claim was dismissed. Chan was not entitled to a share of the deceased's estate as a de facto partner.

Orders

Orders of the court

Plaintiff failed to establish that she and the deceased lived as de facto partners at the time of the deceased's death and for a period of at least two years immediately before the deceased's death

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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