Coss v Norman

[2021] NSWSC 1464

Supreme Court

New South Wales

Medium Neutral Citation:

Coss v Norman [2021] NSWSC 1464

Hearing dates:

3, 4, 5 November 2021

Date of orders:

5 November 2021

Decision date:

05 November 2021

Jurisdiction:

Equity

Before:

Parker J

Decision:

See [112]-[113]

Catchwords:

SUCCESSION – family provision – applicant and deceased living together in six and a half year de-facto relationship prior to deceased’s death – both parties in their mid-to-late forties – relationship ending four months prior to deceased’s death – deceased’s will provided for applicant to receive one of his investment properties with a net value of $200,000 – whether adequate provision made for applicant – violence towards deceased as a disqualifying factor – application refused

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 59

Cases Cited:

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Christie v Christie [2016] WASC 45

MacAlpine v MacAlpine [2020] NSWSC 824

McDonald v O’Connor [2019] NSWSC 261

Slack v Rogan (2013) 85 NSWLR 253

Texts Cited:

Wolters Kluwer, Australian Master Tax Guide (66th ed, 2020)

Category:

Principal judgment

Parties:

Rodney James Coss (Plaintiff)
Fiona Norman (Defendant)

Representation:

Counsel:
TJ Morahan (Plaintiff)
S Chapple (Defendant)

Solicitors:
Lang Noonan Legal (Plaintiff)
Somerville Legal (Defendant)

File Number(s):

2020/230538

Publication restriction:

Nil

Judgment – EX TEMPORE

Revised from transcript and annotated; issued 15 November 2021

1. This is an application for a family provision order under s 59 of the Succession Act 2006 (“the Act”). The plaintiff seeks additional provision out of the deceased’s estate. For convenience, and without disrespect, I will refer to the parties and the witnesses by their given names.

2. The application concerns the estate of the late David Henry Norman, who died in September 2019 at the age of 55. The deceased never married and had no children. He was survived by his three siblings: Fiona Norman (“Fiona”), who was born in November 1959; and Steven Joseph Norman (“Steven”) and Joanne Mankovina (“Joanne”), whose dates of birth are not recorded in the evidence.

3. The application is made by Rodney James Coss, who is known as “James”. [1] He and the deceased lived together in a domestic relationship from 2012 onwards at a home unit property owned by the deceased in Forsyth Street, Kingsford, in Sydney’s eastern suburbs. This continued until early to mid-May 2019, when James moved out. There is a dispute about whether the relationship ended permanently when James moved out or it was merely a hiatus.

   1. James was born in December 1965.

4. The deceased died tragically by suicide. In the four months before his death, he made no less than four wills. By the last will, made nine days before his death, he appointed Fiona as his executor. Under the will, he left an investment property which he owned in Tramway Street, Rosebery, to James. The rest of his estate, (excluding chattels belonging to James, which had been left behind when James moved out of the Kingsford property) he left to his siblings.

5. Fiona obtained probate of the will in March last year. She is the defendant in the proceedings. The proceedings were begun in August last year, which was within the time permitted by the Act.

6. The Rosebery property was mortgaged to a financier. Its net value is about $230,000, subject to a tax question to which I will refer in more detail below. The rest of the estate (after deduction of testamentary and administration expenses, but before the deduction of costs for these proceedings) is worth $740,000.

Summary and analysis of evidence

Chronology of key facts

7. The deceased was born in February 1964. There is little or no evidence about his life up until 2012. By the mid-2000s, he was working as a solicitor for New South Wales Legal Aid. He was living with his mother at the Kingsford unit and had been since about 1983. She was the owner of the property.

8. In 2004, Fiona bought a property in Zamia Street, Redfern, as an investment. The deceased contributed to the cost by making regular payments. Later (I was told in 2007), the deceased bought the Rosebery property as an investment.

9. In November 2010, the deceased’s mother died and he bought the Kingsford property out of her estate so that he could continue to live there. The purchase was financed with a mortgage. The deceased converted the property, which at that stage had two bedrooms, to a three bedroom unit, and took in boarders or charged friends to cover the mortgage costs.

10. The deceased and James met in April 2012. At that stage, James was living at Harrington Park in Western Sydney. He had bought that property with his ex-wife. At the time he met the deceased, he was sharing the property with his mother and his two children. In November of that year, he moved into the Kingsford unit with the deceased.

11. The parties generally maintained their own separate financial affairs. James had a number of bank accounts of his own for his earnings and expenses. Likewise, the deceased had his own bank accounts for his earnings and expenses, which included servicing the loans which he had taken out to purchase the Kingsford and Rosebery properties.

12. The joint financial arrangements between the parties involved each of them contributing a monthly sum of money towards household expenditure, including the Kingsford loan repayments. Initially, James made his payments into an account of the deceased's. Later a joint account was opened.

13. James’ contributions began in May 2013. He started by making fortnightly contributions of $600. The joint account was opened in September 2013. In October 2013, the fortnightly contributions were increased to $1,000 each. This continued until mid-May 2019 when, after James moved out of the property, he ceased making contributions.

14. So far as the evidence is concerned, the period between late 2012 and 2017 was uneventful. But in March 2017 the deceased made a complaint against his superior at work alleging workplace bullying. The complaint appears to have been contested and generated a significant (and for the deceased, stressful) dispute.

15. Shortly before James left the Kingsford property, the dispute was resolved and the deceased was paid out three months’ salary and received a lump sum (said to be $150,000) for his costs. But the deceased was left without his job, to which he had been very attached, and for the moment did not obtain any further employment.

16. As I have already mentioned, James moved out of the Kingsford property in May 2019 and ceased making financial contributions. He took out a lease on another unit nearby. The nature of his relationship with the deceased over the following four months is one of the major factual issues in the proceedings and I will discuss it in more detail below. As I have mentioned, the deceased took his own life in September 2019.

Witnesses

17. Three witnesses were called in the case for the plaintiff. These were James himself; his daughter, Karlie-Rose Coss; and Justin John Standly, a friend of the deceased and James when they were a couple.

18. Three witnesses were called in the defendant's case. These were Fiona; Steven; and Marieanne Duncan, who is Steven’s wife. The deceased’s other sibling, Joanne, was not called as a witness, and the evidence made no reference to her having any relationship with the deceased.

19. Of the witnesses who were called, only James and Fiona were required for cross‑examination. Counsel for Fiona attacked James’ credit. For his part, counsel for James raised questions as to the reliability of some of Fiona’s evidence. The main factual issue between the parties concerned the nature of the relationship between the deceased and James, in particular, during the four months between when James moved out and the deceased died. I will address issues of credit in further detail when addressing that issue below.

Assets of estate

20. The estate assets and liabilities were set out in an affidavit of Fiona, which was largely, if not entirely, undisputed. The affidavit gave figures, as at October this year (last month). The value of the Kingsford property is $850,000, the mortgage debt is $520,000, leaving equity of $330,000. The value of the Rosebery property is $520,000, the mortgage debt is $320,000, leaving an equity of $200,000. All of these figures are rounded to the nearest $10,000.

21. In addition, the estate contains cash derived from the deceased's savings and from his superannuation. The cash held also derives from rent received on the Kingsford and Rosebery properties (the Kingsford property was rented out following the deceased's death). Of the $400,000 held, $40,000 is attributable to rent received from the Rosebery property, and $20,000 to rent received from the Kingsford property.

22. The cash currently held, of course, has already had deductions from it of testamentary and administrative expenses. Costs of these proceedings, which have so far been paid, are $43,000. There have also been payments of expenses associated with the Rosebery property of $7,000, and with the Kingsford property of $6,000. I have assumed that those expenses would be deductible against the rental income which has been received.

23. The estimates given by the parties for the costs of these proceedings, which were not disputed, were $143,000 for Fiona (estimated on an indemnity basis), and $125,000 for James (estimated on a party-party basis). On these figures, the value of the gift to James in the will is $200,000 (representing the equity in the Rosebery property), together with income of $40,000, but less expenses of $7,000. Rounded to the nearest $10,000, the total is $230,000 of which $30,000 will be taxable.

24. Turning to the value of the residue, if one adds back the litigation costs and the Rosebery expenses paid by the estate, the result is a notional residue, including the equity at Kingsford, of $740,000. But litigation costs to be borne by residue could be as high as $270,000, and therefore the residue could, in the end, be as little as $470,000. [2]

    2. In the two years or so before his death, Fiona appears to have helped the deceased with his legal expenses and some household expenses. In his will the deceased left to Fiona any equitable interest he had in the Redfern property as a result of his contributions to the loan repayments “as repayment of” a loan from Fiona towards his legal costs. There was some cross-examination of Fiona about her having reimbursed herself for expenditure from the estate, but this was not pursued in final submissions and I do not consider it further in the judgment.

25. In the course of final submissions I raised with counsel the incidence of capital gains tax in the event that the Rosebery property is sold. Counsel for Fiona obtained advice from an accountant overnight which was provided to the Court without objection. The accountant has concluded that the sale of the property would result in a capital gain, assessable to the estate, on which tax would be paid at normal individual marginal rates. If the property is sold at its current value, the tax payable would be $26,000.

26. Since I raised this issue with counsel, I have reflected on it further. It seems to me that it may not be correct to proceed on the basis that there will be a tax liability which will be borne by the estate out of the residue. What the will contains is a gift of a specific property. James could, if he wished, take a transfer of the property, subject to discharging or refinancing the mortgage. Indeed, in the course of final submissions, counsel suggested that James might wish, if his application for provision is successful and he receives the capital sum that he seeks, to do that very thing.

27. In that event, there would be no sale of the property within the estate at all and there would be no capital gains tax event. James would simply take ownership of the property at the deceased's cost base (that is, the original cost). If he were later to sell the property he would then pay capital gains tax based on the deceased’s cost base. [3] It seems to me somewhat strange to think that if, instead of taking this course, James had the property sold within the estate, the result would be different and the residuary beneficiaries would bear the capital gains tax liability.

    3. See Wolters Kluwer, Australian Master Tax Guide (66th ed, 2020) at [12-580].

28. It is not necessary to reach a final conclusion on this question. If I am correct in thinking that there will be some tax for James to pay when the property is sold, the timing of the sale will ultimately depend on James and the amount payable will depend upon how much other income he earns in the financial year in which the sale takes place. In the end, the possibility of the notional value of the gift to James being reduced by capital gains tax does not affect the conclusions which I have reached for the purposes of this judgment.

Plaintiff’s circumstances

29. Apart from his superannuation, James has few, if any, assets. He owns a car (apparently given to him by the deceased) which is worth $3,500, and households contents worth $3,000. He has no investments or savings of any substance. He has credit card liabilities of over $11,000.

30. James has been employed by the Australian Border Force for what seems to be a long period of time. His current income is $67,000 gross, or $52,000 net per annum. He estimates his outgoings at $31,000 per annum. As at December last year, James’ superannuation (if cashed in) would have been worth $260,000. That amount will, of course, increase for as long as he continues in paid employment.

31. In the course of final submissions, counsel for James referred to evidence of occasional back problems but did not suggest that this was a factor of any great importance. Otherwise, James’ health appears to be sound. In the course of cross‑examination, James faintly suggested that he might not work right up until the age of 65. But there is no real reason disclosed by the evidence as to why he would not be able to do so if he wished, or perhaps even beyond.

Other beneficiaries’ circumstances

32. There was no evidence before me as to the financial position of any of the deceased’s siblings. I therefore proceed on the assumption that none of them is in any relevant financial need.

Deceased’s relationships and testamentary arrangements

33. Witness evidence: I will start with James’ case, as presented in his initial affidavit. James described living together with the deceased in a committed relationship, which began even before he moved into the Kingsford property in November 2012. He gave evidence of the $1,000 per week contribution that he made. He said he also contributed to renovations which were undertaken at the Kingsford property during the time that he and the deceased were a couple.

34. James described the dispute with Legal Aid as marking the beginning of a change. James characterised the behaviour of a Legal Aid supervisor as “homophobic bullying”. He said the deceased was stressed by the dispute and very upset at the result. He described the deceased as engaging in self‑pity and also blaming him for what had happened.

35. James described the deceased as being verbally abusive and, at times, physically abusive. He said the deceased would push him up against a wall to stop him leaving the unit to go to work. He would be woken by the deceased at night and was worried about being assaulted. He was also unable to get proper sleep.

36. He described how he came to leave the Kingsford property in the following way. He said that he was assaulted (I assume by being pushed in the way that he had described earlier in his evidence) before he left to go to work. He returned and found himself locked out. The deceased then asked him to come back, which he did, on condition that the deceased would seek professional help for his emotional state. But a few days later, the deceased assaulted him again, and he left.

37. James said he only left the Kingsford property because he could not put up with the deceased’s behaviour. He said he retained a key and also gave the deceased a key to the flat that he had rented. They remained in contact and continued to see each other.

38. James said the deceased begged him, on numerous occasions, to go back, but he described the deceased’s behaviour as becoming more erratic and self‑absorbed all the time. He recounted an incident where the deceased detained him in a car and spoke of murder‑suicide. He also described being woken in his new flat by the deceased, who would come in late at night and speak to him about similar things.

39. According to James, on Thursday, 29 August, there was a further scene. The following day, the deceased was remorseful and spoke of his wish to get married. According to James, he seemed to have calmed down somewhat. The deceased also said that there were people plotting to keep the two of them apart, and these included his sister, Fiona.

40. James stated that he spoke with the deceased over the following days. The deceased was depressed, but remained contrite, and continued to speak of marriage. James said he tried, but failed, to make contact with the deceased on 11, 12 and 13 September. The deceased actually died on 14 September, a Saturday. James tried to contact him on the Sunday, and eventually learned of his death the following Tuesday from the deceased’s siblings.

41. James said that even after moving out, he continued to see himself as the deceased’s de facto partner. In his affidavit evidence, he stated:

During the time that the deceased and I argued and fought neither of us said or did anything to suggest that our relationship had ended.

42. Fiona’s account, in her affidavit, painted a completely different picture. Fiona said that she had always been close to the deceased. She spoke to him and saw him often, especially during the last few months of his life.

43. Fiona recounted frequent complaints during the relationship from the deceased of violent and destructive behaviour on the part of James, including when he was affected by drugs. Fiona said she was told by the deceased that James would break things and damage the flat. She was told, in 2014 or 2015, that James had made the deceased sleep in a separate bedroom.

44. Fiona also recorded complaints by the deceased about paying for everything when, as a couple, James and he entertained friends, went out or went on holidays. Fiona said that she had observed this herself and had taken it up with the deceased.

45. According to Fiona, she was told by the deceased that James had involved himself in the dispute with Legal Aid at the initial stages. The deceased had come to blame James for his aggressive approach to the dispute. Fiona also described James as having been unsympathetic to the deceased about the litigation, including an occasion on which she was present where James accused the deceased of being a weakling. She recounted being told by the deceased that James had laughed at him over the result of the case.

46. It was clear from Fiona's evidence that the case had an adverse effect on her brother. She described him as having “slowly lost his mind”. He became unable to focus and could not make decisions.

47. Fiona began her account of the circumstances in which James moved out by recounting a conversation she had with James early in May 2019. She said James told her that the deceased had told him that he (James) was going to have to move out. Her reply was that as a result of the outcome of the dispute with Legal Aid there was not enough money to pay the mortgage and both of them were going to have to move out. Later, she said that she was told by the deceased that James was leaving him because he had no more money.

48. When James moved out he left some of his furniture behind. According to Fiona, the deceased moved this furniture downstairs to the garage and showed Fiona text messages asking James to come and collect it. Fiona also described being told that the deceased had changed the locks on the flat on more than one occasion. He also instituted proceedings for an apprehended violence order against James but did not pursue them.

42. Fiona said that in conversation the deceased referred to James as his “ex”. He spoke of the relationship in the past tense. But according to Fiona there were also many occasions on which the deceased demonstrated that he still wanted to be together with James. On these occasions, he would “go to pieces” about having been rejected.

43. Fiona also gave evidence pointing to violence by James towards the deceased. The best documented of these took place on 22 May 2019. The deceased had a large visible bruise on his thigh and contusions around his eye and elsewhere on his face. Fiona said the deceased told her that these injuries had been inflicted on him by James. Between them, they took photographs of the injuries, which were in evidence. They also went to a GP whose notes are in evidence.

44. According to Fiona, this was not the only violence in the relationship. She said that quite early on she observed the deceased sporting similar injuries. At the time, he put them down to some sort of fall, but after James left in May 2019, he told her that these injuries were inflicted on him by James.

45. According to Fiona, the deceased also described an incident when the two of them were in a car and he was struck by James. The deceased told Fiona that James later told their friends that the deceased had been the aggressor. According to Fiona the deceased said that while there might have been periods of a couple of weeks or so when the situation would be good, for most of the time he found himself “walking on eggshells” because of abusive or menacing behaviour from James.

46. Fiona also said that the deceased told her, after James left, that they had not had sex for five years. At the end they had been nothing more than “just flatmates”.

47. Fiona also gave evidence seeking to cast doubt on James’ claims of being menaced by the deceased, including the alleged night‑time visits. She said that from May 2019 onwards she maintained very regular contact with the deceased and never saw him together with James. Furthermore, Fiona said that the deceased frequently stayed with her over the last four months of his life and she never observed him going out in the middle of the night.

48. Fiona also gave evidence about the deceased’s testamentary intentions. She said that she and the deceased had frequently discussed over the years what provisions they would make in their wills and that the deceased was a “frequent will-maker”.

49. Fiona said that at some point after May 2019, she was told by the deceased that he had made a will in which he had left an amount to James, but only to avoid trouble. The deceased told her that he was afraid of what James might do to Fiona and her daughter.

50. Finally, Fiona gave evidence of James’ behaviour following the deceased's death. A few weeks after his death, and shortly after the funeral, she discovered that James had given instructions to the Commonwealth Bank to freeze the deceased’s bank accounts. He also obtained access to the Kingsford flat and locked Fiona out of it. Police action was required for Fiona to get possession (to which, of course, she was entitled as executor). When she did get access, she found that the documents which she and her brother Steven had been going through had been removed.

51. In reply, James agreed that in the course of his dispute with Legal Aid the deceased had become unable to focus and to make decisions. He described him as having become introverted. James accepted that he had received text messages from the deceased asking him to remove his goods from the Kingsford property. He did not dispute having taken over the unit after the deceased's death.

52. James acknowledged that there had been some sort of fracas between himself and the deceased which had resulted in them both “wrestling” on the floor, but he depicted the deceased as the aggressor. He also said that damage done to the unit had been done by the deceased. Otherwise, he denied Fiona's allegations about dysfunctional aspects of the relationship.

53. In response to Fiona’s evidence about her brother’s testamentary intentions, James presented the deceased as having decided (albeit at an earlier time) to make him the main beneficiary. He said:

… I say that in about November 2018 Steven Norman the brother of the deceased attended the Kingsford unit. When I arrived the deceased and Steven were sitting at the dining table drinking scotch. I said “"what brings you here Steven?” He said “I am here to drop off a will for David”. David said “he brought it from Marianne's law firm”. David then started to read the document. He said “this is the situation, this is your home (meaning Forsyth Street). Steven you will make sure James is looked after. Everyone knows this is our place. I want to leave my share of Surry Hills to Fiona”. I said “I don't have any interest in it, I couldn’t care less”.

61. James’ evidence in reply was accompanied by the evidence to which I have already referred from Mr Standly and from James’ daughter Karlie-Rose.

62. Mr Standly appears initially to have been the deceased’s friend. He met the deceased and James in 2013 and was friendly with both of them until the deceased's death. He said that the deceased asked him to sing at the wedding that the deceased was planning with James in France (Mr Standly is a musician). He placed this as having happened in about December 2016. He also said that the deceased told him that James was to get the Kingsford property for himself and his children. Mr Standly said that he was told this in 2017 or 2018.

63. Mr Standly was told by the deceased that James had moved out, but that the deceased wanted James back. Mr Standly also spoke to James at the time, and was told by James that he had had to move out because of the deceased's behaviour.

64. Karlie-Rose gave evidence of receiving from the deceased as early as 23 March 2019 a message which hinted at difficulties in the relationship, but stated that “honest conversations” were taking place. She said she was told by her father that he was worried for his safety. On 8 July 2019 she met the deceased at Westfield, Bondi Junction. The deceased referred to her father moving out but said that he considered that they were still together and told her that they were working matters out. She said she was told similar things by her father.

65. Karlie-Rose was due to graduate in about September 2019 from a tertiary course. It seems that the deceased had planned to go. She said that on 12 September, two days before the deceased's death, he spoke to her and told her how much he was looking forward to attending the graduation. On the next day, however, he called her and said that he could not come. He did not, at any stage, say that the relationship between himself and her father had come to an end.

66. Documentary evidence: At this point, I should refer to the written evidence in the form of wills and recorded statements made by the deceased. As I have mentioned, the deceased made four wills in the last four months of his life. [4] The first was made on 27 May 2019. By that will, the deceased left his estate as to 75% to Fiona and 25% to Steven. The will specifically excluded James from any benefit.

    4. In what follows, I omit reference to the provisions the deceased made setting off his possible interest in the Redfern property against monies lent to him by Fiona: see footnote 2 above.

67. The second will was dated 1 July. In that will, James received a legacy of $40,000 and Fiona received the whole of the residue. The will contained, however, a clause that if James challenged the will he would receive nothing and the whole of his legacy would pass to Fiona.

68. The next will was made on 4 September. By that will the deceased left his estate to his siblings in the ratio 70% for Fiona; 15% for Steven and 15% for Joanne. There was no provision for James and he was not mentioned in the will.

69. The final will was the will admitted to probate, which was made on the following day, 5 September. I have already referred to the provision in favour of James, whereby he was to receive the Rosebery property. The residue of the estate was to go to the deceased’s siblings, in the same ratio as the will made on the previous day.

70. I have already referred to the injuries suffered by the deceased and the visit to the general practitioner (“GP”) on 22 May. The GP’s notes state:

Partner got upset when he was trying to break up with him this morning

Have been together for 7 years

Partner who works as Federal Police punched him over jaw [a] few times

& above left forehead & was kicked over left upper thigh

71. Finally, there is a handwritten document, in the form of a statement prepared by the deceased. The document is undated, but it was identified by Fiona as having been written at some point in the second half of August 2019, and this was not disputed. I will refer to it as the deceased’s “August statement”.

72. The statement contains an account of the relationship between the deceased and James from April 2012 onwards. It is very critical of James. It refers to various incidents and describes them as “signs” which the deceased should have seen earlier. It refers, with relief, to having got rid of James.

73. Among the complaints made in the statement is the complaint about James not bearing his fair share financially:

Tony Nelson [5] earned more than me so I felt when I bought the wine I was just repaying the cosmos. It bugged me that I regularly bought the six bottles of wine each week and he never paid.

…

My family and friends told me their concerns about James but I was happily living the dream. When we went out I regularly paid for him (and also his children). Another sign I chose to ignore. James kept money for his children and never told me his earnings and he regularly underpaid his two week board-it was supposed to be $1,000 per fortnight.

…

On another occasion a debt collection agency called as we walked through Redfern Pack he started screaming at the guy on the phone. I took over the call and I paid his electricity bill from his flat at Randwick ($255) another warning. My friends and family were concerned regarding my generosity and the fact that James never paid, occasionally he would get a payout from an accident or selling his car. Over the time I knew him, he spent at least $110,000 from payouts. But he never paid his credit card which to this day remains at $11,000.

5. In final submissions, counsel for James suggested that the reference to Tony Nelson (who was not identified in the evidence) in some way affected the cogency of the note. But I think it is clear from the context that he must have been a former partner of the deceased.

74. A critical passage refers to drug use on the part of James, and violence towards the deceased:

He bought substances on his other phone and people would ask me to pay for them as he never did another warning. All the while my family and close friends expressed their concerns. And there was the aggression he would get glassy eyed and grab me around the throat ready to punch me I calmed him down twice. Another time he came out of the bathroom kicking and punching me, most of the time we had loud arguments. Very loud.

75. At this stage I should also refer to the evidence of Steven and Marieanne. Steven described being told by the deceased that James had left and between them they mentioned the possibility of some sort of family law claim being made. Steven said he did not recall the episode described by James in his affidavit about the supposed will. Marieanne supposedly drafted the will, but she gave clear and definite evidence that she had never prepared any such document. As already mentioned, neither of them was required for cross-examination.

76. James’ credit: James was an unsatisfactory witness. It was frequently necessary to remind him to concentrate on the questions that he was asked and to answer them. Despite these requests, his answers were frequently non-responsive or argumentative.

77. Counsel also raised a number of specific credit points. The first concerned James’ evidence about the contributions made to the household expenses. In his initial affidavit, James said that the joint account was opened, and the contributions began, in December 2012. After that had been disputed by Fiona, James said in his next affidavit that the contributions had begun in February 2013. In fact, as the cross-examination demonstrated, the contributions did not begin until May 2013, and they did not reach the level of $1,000 per fortnight until October 2013. While not of enormous importance in itself, I thought that the cross-examination demonstrated a degree of exaggeration and also an unwillingness to make appropriate concessions when confronted by contradictory, indisputable, evidence.

78. The second point raised by counsel concerned James’ evidence about paying for renovations. As presented in his affidavit, he seemed clearly to be asserting that these were additional payments. But in cross-examination, it emerged that this was not the case at all. In a way that I thought did not make a great deal of sense, James maintained that all he was doing was referring to his $1,000 per fortnight contributions, which, so he asserted, had funded the repairs and renovations.

79. As well as demonstrating a degree of exaggeration, the cross-examination also underlined the way in which the parties kept their finances separate. James had no involvement in the dealings between the deceased and the bank, and was in fact unaware of a refinancing which was undertaken by the deceased in 2018, apparently to raise funds to pay for the Legal Aid employment dispute. James made it clear that he saw this as the deceased's financial responsibility and it had nothing to do with him.

80. The third credit point concerned James’ evidence, which I have quoted above, about the will supposedly prepared by Marieanne and brought over to the Kingsford property by Steven. Because the evidence of Marieanne and Steven was not contested, I have no alternative but to accept it. And although there was no cross‑examination, I think that I must also, therefore, conclude that James’ evidence on this point was invented. In the end, I did not understand counsel for James to dispute this.

81. Again, this is not the most important issue in resolving the present dispute between the parties. But if, as I must conclude, the evidence is incorrect, it means not only that James has purported to recall an incident which simply never happened, but also that he has embroidered that incident with a whole lot of detail which he cannot possibly have truly remembered.

82. The fourth credit point concerns the injuries suffered by the deceased on 22 May 2019. In cross‑examination, James was asked whether the injuries could have come from the “wrestling” incident which he acknowledged in his evidence. He denied this.

83. James was shown the photographs. He gave the following evidence:

Q.   Do you recall David [the deceased] sustaining that bruise?

A.   No, I do not.

Q.   Do you recall ever seeing that bruise?

A.   No, I do not.

Q.   …Do you recall David sustaining that black eye?

A.   Definitely not.

Q.   …Do you recall David sustaining that bruising down the side of his back?

A.   No, I do not.

Q.   …Do you recall David sustaining those marks on his face?

A.   No, I do not.

84. The cross-examination continued:

Q.   Isn’t it your evidence that after you had moved out, David went to your flat every second day?

A.   He would pop in spasmodically – sometimes when I was actually on my way to work or after I just got home from work.

Q.   You would accept though, wouldn’t you, that if David turned up at your place looking like that, you would have noticed it?

A.   Definitely.

Q.   So, do you know how those injuries were caused?

A.   No.

Q.   I suggest to you that you caused them.

A.   Definitely not.

Q.   And it’s also your evidence that you don’t recall seeing David with those injuries?

A.   No.

Q.   Is it possible, then, that your evidence that he was at your flat every second day is another exaggeration?

A.   Maybe I just didn’t notice it.

Q.   But you just said to me that if he turned up looking like that, you would notice it?

A.   Well, he would turn up, talk to me through the car door sometimes, and I would be on my way to work. So, I would not have time to assess his full body and see whether or not he had bruises. So, my answer is no, I did not notice those bruises. And I’ve never seen them before.

Q.   This is bruising to his eye and on his chin and around his nose, which is not requiring you to check his full body?

A.   Well, I don’t know. He might have been seated in the car with glasses on, I don’t know, and facing one side. I don’t know. All I can say is that I’ve not seen those injuries.

85. I regret to say I found this evidence very unconvincing. I disbelieve it.

86. The deceased’s injuries were real; no one disputes that. The deceased told the GP, as recorded in the GP’s notes (see [70] above), that James was the perpetrator, and violent and threatening behaviour is also recorded in his August statement. I deal below in more detail with the reliability of that statement, but it is sufficient to say, for present purposes, that I see no good reason to question its reliability, nor is there any good reason to question the accuracy of what the deceased told the GP.

87. No suggestion has been made that the deceased inflicted the injuries on himself, or that they were inflicted by some third person. In the light of the unconvincing evidence which has been given by James, I am driven to the conclusion that he was, in fact, the perpetrator.

88. As well as being a very important matter for the resolution of the proceedings generally, this finding has a significant effect on James’ credit. He might have sought to explain the injuries as a result of some form of provocation, or perhaps only as an isolated incident, but he has chosen to deny it absolutely. I am unable to accept that denial. This alone makes it very hard to credit any of his other testimony.

89. The final credit point arose out of the evidence given by James that neither he, nor the deceased, did anything to indicate that the relationship had come to an end, at least so far as the deceased was concerned (see [41] above). This is objectively wrong, as I will describe in a moment. It may be, however, that all James really intended to say was that he did not accept that he had done anything to indicate the relationship had come to an end, and did not interpret the deceased’s conduct as indicating such an intention on the deceased’s part. In the light of the other credit findings that I have made, any lack of candour on this point has less importance than it would otherwise have had, and it is not necessary to pursue it any further.

90. Fiona’s credit: Fiona too was a poor witness. In fact, so far as answering questions were concerned, and giving her evidence directly, she was even worse than James. Her antipathy to James was also plain to see. However, although there were points raised with her where her answers could not be verified, nothing she did say was actually demonstrated to be false or exaggerated. Significant elements of her oral evidence were also consistent with the deceased’s August statement. While I do not necessarily accept everything that she has said where it is not supported by other evidence, I think in general I may proceed on the basis that her evidence is reliable.

91. Conclusions: The objective and documentary evidence about the end of the relationship is clear. James did move out of the Rosebery property and started renting nearby. The deceased did refer to James as his “ex”, including in the will of 27 May 2019. James did cease making the $1,000 per fortnight contribution. That remained the position up until the deceased’s death in September.

92. If I am to do something other than take these facts at face value, then I must accept the explanations offered by James, which rest almost entirely on his own uncorroborated assertions. I must also either ignore or downplay the content of the August statement.

85. Counsel for James pointed out that the August statement was prepared during a time of turmoil for the deceased, and that that affected its reliability. Counsel made a similar submission about the GP note. I have already referred to the evidence given by both Fiona and James about the effect on the deceased of the Legal Aid dispute, and subsequent events. But I think it is clear that when Fiona said that the deceased had “lost his mind” she was not suggesting that he had been hallucinating or imagining things, or had lost his memory.

86. Difficulty in focusing and vacillating in making decisions are well illustrated by the fluctuations in the deceased’s testamentary intentions, reflected in the four wills he made over the four months prior to his death. Clearly he was in an agony of indecision and seemed to regard the future with fear or even desperation. But that does not necessarily mean that events recounted by him to the GP or recorded in the August statement did not happen.

87. It is not uncommon in litigation of this type for a formal statement made by a deceased explaining the testamentary dispositions that the deceased has made to be prepared and to find its way into evidence. The August statement was not made for this specific purpose, but the purpose for which it was made is close enough for present purposes.

88. The relevant authorities were discussed by Hallen J in McDonald v O’Connor [2019] NSWSC 261 at [171]-[182]. I must remember that a statement by the deceased and recorded in such a statement has all the frailties that testamentary evidence can have. Nor can it be tested in cross‑examination.

89. But the August statement in this case does not stand alone. Not only is the reference to violence supported by what the deceased told the GP, but more broadly, the statement is consistent both with the objective evidence that I have described and with the deceased’s testamentary intentions as reflected in his wills.

90. Furthermore, in a case involving a testamentary statement, the court would usually expect a party seeking to diminish the force of the statement to produce evidence to show that incidents or judgments recorded in it were not soundly based on fact. Although James denied Fiona’s version of events, he did not, at any point, address the specific incidents referred to in the August statement and seek to show that they were in some way incorrect. He had ample opportunity to do so. In these circumstances, submissions from counsel that the document was unreliable, made in general terms in the course of final submissions, are of little persuasive force.

91. Overshadowing everything are the problems with James’ credibility. I am not prepared to accept his word over the deceased’s recorded statements. Indeed, I see no reason to doubt the accuracy of the August statement, and I accept it as factually correct. [6]

    6. It is true that the evidence from Mr Standly and from Karlie-Rose was uncontested but, as counsel for James himself said in final submissions, the parties to a relationship or former relationship often say different things to different people. The evidence from these witnesses does not in my view furnish any reason to doubt the accuracy of the August statement or the GP’s notes.

92. This does not mean that I accept additional criticisms of James reflected only in complaints recalled by Fiona in her affidavit, such as the statement that the deceased and James had stopped having sex five years before 2019. This is not because what Fiona has recorded is necessarily untrue. It is just that in the absence of corroborating independent evidence I simply cannot say one way or another.

93. In saying this, I do not mean to convey that the breakdown in the relationship was necessarily entirely James’ fault. There may well have been an element of self-pitying and unjustified recrimination on the deceased’s part, which James could have found tiresome. That could readily have explained or contributed to his moving out.

94. But what I do accept is that from the deceased's point of view, by May 2019 the relationship had become toxic and he was better off without it. When using his head rather than his heart (such as when writing the statement) the deceased recognised this. [7]

    7. Compare the frequently cited statement that a testator should be “wise and just” rather than “fond and foolish”: Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 478-479.

Application for provision

103. Counsel for James contended that he was an eligible person for the purpose of the Act, as somebody who was in a de facto relationship with the deceased at the date of the deceased's death: s 57(1)(b). Alternatively, counsel relied on s 57(1)(e) on the ground that James had at least at some point been dependent upon the deceased, and that there were “factors which warrant the making of the application”: s 59(1)(b).

104. Counsel for Fiona disputed that the deceased and James were in a de facto relationship at the date of the deceased's death. But counsel did not dispute that there had been at least a period of dependency in the past, and counsel accepted that if the circumstances demonstrated that the provision was inadequate then the necessary factors warranting the making of the application would be present. Accordingly, there was no need to consider the eligibility issue separately, and it was possible to proceed straight to whether the provision was inadequate for James’ proper maintenance, education and advancement.

105. Counsel for James emphasised in submissions that determining the proper level of provision was very much a matter for me, but with due diffidence, he suggested that a proper level of provision would have been such as to provide James with a home for the future and a financial buffer against expenditure he might incur later in his life. This would require a further provision sufficient to pay off the debt on the Rosebery property ($320,000), and it was suggested that the appropriate buffer would be $200,000, thus resulting in a further provision of $520,000.

106. Such a further provision would, of course, divert to James the lion’s share of the residue. In some scenarios, there would be insufficient residue to meet that further provision. In effect, I would be giving virtually the whole of the estate to James.

107. In evaluating this claim, I must take account of the fact that the relationship was not lengthy and started in later middle age. Nor did James undertake any responsibility for any children or parents of the deceased or any other member of the deceased’s family. This must be weighed up against the deceased’s family ties, based on a whole lifetime of shared experience between himself and his siblings, in particular, Fiona.

108. Furthermore, on the evidence, the relationship, while it lasted, did not involve any great financial commitment on the part of James. He maintained his employment, and, subject to the payment of the $1,000 per fortnight, he maintained his own separate finances. That fortnightly contribution does not appear to have been much more than James would have been paying to live on a shared basis. At $26,000 per year, it is less than James’ estimate of his current personal expenditure, which includes $24,000 a year ($2,000 a month) for rent and household supplies.

109. If, as I have found, the deceased was paying more than his fair share of entertainment and holiday expenses, the effect may well have been that James was receiving a subsidy. This is not said critically; it is only to emphasise that by entering into the relationship, James has not forgone financial opportunities that would have been available to him otherwise. Nor did counsel suggest that James’ contributions have resulted in any significant build‑up of the deceased’s assets.

110. Furthermore, and very importantly, I have found that James was violent towards the deceased. In my opinion, this is a major disentitling factor in an application such as the present. [8] The Court should not be seen to downplay, and much less to reward, behaviour of that kind, especially when no explanation has been offered and no remorse expressed. James was entitled, of course, to present his case as he has, by denying any violence. But having been rejected on what he has said, he can hardly expect the Court to do anything other than to take a severe view of it.

     8. As in Christie v Christie [2016] WASC 45; see at [37].

111. Finally, I observe that the onus lay on James to substantiate his claim that the provision made for him by the deceased was inadequate. Even without the disentitling factors that I have mentioned, I do not think he has done so. The pattern in the deceased’s wills over the last four months of his life show a fluctuation, but the last will, which is the one that has been admitted to probate, was by far the most favourable from James’ point of view. It provided for him to receive at least $200,000. [9] Had it been necessary to determine what provision “ought” to have been made for James, I would have reached a lesser figure than that.

     9. The testamentary judgment in the will, which was clearly the product of anxious consideration and came from a person with full knowledge of the relevant facts, should not lightly be disregarded: see Slack v Rogan (2013) 85 NSWLR 253 at 284-285 [127] and the discussion in MacAlpine v MacAlpine [2020] NSWSC 824 at [340]-[342].

Conclusions and orders

112. I have concluded that even assuming that James satisfies the eligibility test under the Act, he has failed to demonstrate that the provision made for him in the deceased's will was inadequate for his proper maintenance, education, or advancement. The application must be dismissed.

(The parties sought an opportunity to present written submissions on costs)

113. The orders of the Court are:

1. Order that the summons be dismissed.

2. Costs reserved.

**********

Endnotes

Decision last updated: 15 November 2021