Estate MPS, deceased

[2017] NSWSC 482

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Estate MPS, deceased [2017] NSWSC 482

Hearing dates:

19, 20 and 21 April 2017

Date of orders:

30 May 2017

Decision date:

04 May 2017

Before:

Lindsay J

Decision:

A grant of family provision relief is to be made, in the form of a legacy, subject to consideration of whether orders should be made, upon an exercise of protective jurisdiction, to provide for management of the estate of the plaintiff as a person in need of protection.

Catchwords:

SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy

 

SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward

 

SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship

 

SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders

  PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders

Legislation Cited:

Family Provision Act 1982 NSW
NSW Trustee and Guardian Act 2009 NSW.
Probate & Administration Act 1898 NSW
Property (Relationships) Act 1984 NSW
Succession Act 2006 NSW
Testator’s Family Maintenance and Guardianship of Infants Act 1916 NSW
Trustee Act 1925 NSW

Cases Cited:

A v A [2015] NSWSC 1778
Amprimo v Wynn [2015] NSWCA 286
Amprimo v Wynn [2015] NSWCA 286
Andrew v Andrew (2012) 81 NSWLR 656
Barlevy v Nadolski [2011] NSWSC 129
Bayssari v Bazouni [2014] NSWSC 910
Bladwell v Davis [2004] NSWCA 170
Carroll v Cowburn [2003] NSWSC 248
Churton v Christian (1988) 13 NSWLR 241
CJ v AKJ [2015] NSWSC 498
Collins v McGain [2003] NSWCA 190
Dridi v Fillmore [2001] NSWSC 319
Fulton v Fulton [2014] NSWSC 619
GAU v GAV [2016] 1 QdR 1; [2014] QCA 308
Hayes v Marquis [2008] NSWCA 10
Hinderry v Hinderry [2016] NSWSC 780
Holden Francis Frisoli v Natasha Anastasia Kourea [2013] NSWSC 1166
IA v TA [2016] NSWCA 179
In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318
Jodell v Woods [2017] NSWSC 143
Luciano v Rosenblum (1985) 2 NSWLR 65
McLean v Public Trustee [2001] NSWSC 970
Meres v Meres [2017] NSWSC 285
Page v Page [2016] NSWSC 1218
Popescu v Borun [2011] NSWSC 1532
Re Fulop Deceased (1987) 8 NSWLR 679
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Sammut v Kleemann in Meres v Meres [2017] NSWSC 285
Saravinovksa v Saravinovski (No 6) [ 2016] NSWSC 964
Skarica v Toska [2014] NSWSC 34
The Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Vigolo v Bostin [2005] 221 CLR 191

Texts Cited:

-

Category:

Principal judgment

Parties:

Plaintiff: DNF
Defendant: NTS

Representation:

Counsel:
Plaintiff: K Morrissey and M Bridgett
Defendant: M Painter SC and R Bianchi

  Solicitors:
Plaintiff: Turner Freeman
Defendant: Wills and Estates Legal Service

File Number(s):

2015/00291238

Judgment

INTRODUCTION

1. By a summons filed on 6 October 2015 and amended on 10 June 2016, the plaintiff applies, within the time limited by section 58(2) of the Succession Act 2006 NSW, for family provision relief, under Chapter 3 of the Act, from the estate of the late MPS (“the deceased”), claiming the status of an “eligible person”, with standing (under section 59(1)(a) to make such an application) by virtue of section 57(1)(f) of the Act.

2. He claims to have been living in a “close personal relationship” with the deceased, at the time of her death, so as to bring himself within section 57(1)(f). As that term is defined in sections 3(3)-3(4) of the Succession Act 2006, the key focus is on whether (and, if so, upon what terms) he was “living together” with the deceased, at the time of her death, in a close personal relationship attended by the provision of “domestic support and personal care”.

3. In this judgment names are anonymised because the plaintiff suffers a mental health disability and he is, or may be, a person in need of an exercise of the Court’s protective jurisdiction.

THE DECEASED AND HER ESTATE

4. The deceased was born in April 1943, and died at Manly on 6 October 2014, aged 71 years.

5. She died intestate, without family other than her brother NTS (the defendant), and his family, residents of Western Australia. Her brother was six years her junior. He was born in November 1949. He is now aged 67. He is in ill-health (suffering Parkinson’s Disease), in retirement.

6. Letters of Administration were granted to the defendant, by this Court, on 5 February 2015.

7. By operation of section 129(1) of the Succession Act, and subject to any orders made in these proceedings, the defendant is beneficially entitled to the whole of the deceased’s estate under the “intestacy rules” for which Chapter 4 of the Act provides. She left no spouse; her partner of many years, JWJ, died in April 2012. She left no parent; both predeceased her. Her brother, the defendant, is her nearest surviving relative. Their elder brother, VAS, died in 2003, two years after their mother.

8. The respective estates of the deceased’s mother and brother were both administered as intestate estates. It is not unrealistic to assume that the deceased was familiar with the general nature of an intestacy, and the prospect that, if she died without a Will, her estate would pass to the defendant, her surviving brother. A conversation with the deceased, to which her solicitor has deposed, expressly confirms that assumption.

THE SIZE AND COMPOSITION OF THE DECEASED’S ESTATE

9. For the purpose of these proceedings the parties agree that the estate of the deceased can be valued, conservatively, at approximately $2 million.

10. A residential property owned by the deceased (in Woy Woy) having been sold by the defendant (in August 2016) in administration of the deceased’s estate, the property presently comprising the gross estate can be identified, and attributed an estimated value, summarily as follows:

1. 3 home units in Balgowlah, with a total estimated value of approximately $1.825 million;

2. funds held in bank accounts (including the proceeds of sale of the Woy Woy property) totalling approximately $764,000.00; and

3. 500 Ordinary shares in a public company, with an estimated value of $2,345.00.

11. An estimation of the current value of the deceased’s net estate requires allowances for the following liabilities:

1. strata levies totalling $147,636.77 inclusive of GST, recently imposed on the Balgowlah home units to fund remedial works; and

2. a liability for (2016) income tax not presently quantified.

THE COSTS OF THE PROCEEDINGS

12. Without investigation (not presently necessary), the parties’ costs of these proceedings appear to be exorbitantly high. The plaintiff’s solicitor estimates the plaintiff’s costs at about $135,000 inclusive of GST (on a solicitor-client basis) and about $85,800 inclusive of GST (on the ordinary basis), with a $50,000 gap between costs that might be recoverable from the deceased’s estate and the plaintiff’s liability to his lawyers. The solicitor for the defendant estimates the defendant’s costs (on the indemnity basis) at about $292,800 inclusive of GST.

13. The defendant’s counsel invited the Court to allow for the fact that, until 6 May 2016 or thereabouts, the plaintiff was unrepresented, a litigant in person, and the conduct of the proceedings is said to have been complicated.

14. Another factor that might have to be added in order to explain the costs incurred on both sides of the record may be the difficulty of dealing with the plaintiff – either as a client or as an adversary – a person whose mental health is at best precarious.

THE FACTUAL MATRIX OUTLINED

15. The plaintiff claims to have known the deceased as a friend since about 1979, at about which time he claims to have had a sexual relationship with her and her partner JWJ, as a threesome, over a period of around six months. After that time, the plaintiff says, he and the deceased substantially went their separate ways until a chance meeting in August 2012. In the interim, he established a long term same-sex relationship with BW, who died in November 2009.

16. At the time of their meeting in August 2012 the deceased was terminally ill, expecting death, and commonly in pain. She was living in a Manly hotel (one of a number of such residences, over time), ostensibly pending arrangements being made for more permanent accommodation, or death, whichever should first occur.

17. The plaintiff is and has been for many years on a disability pension, the foundation for which, I infer, must be found in the state of his mental health. He says that, but for his mental health, he is and was between 2012-2014 in reasonable physical condition.

18. In August 2012 he was living in a small rental cottage in Manly. The plaintiff says that, despite the deceased’s ill health, he and she resumed a sexual relationship which continued, within constraints associated with her ill health, and with diminishing frequency, until her death. A natural scepticism about that cannot but be noticed.

19. However, more germane to a determination of the plaintiff’s application for family provision relief, he claims to have served the deceased as her carer, to have lived with her (albeit with each of them, for the most part, maintaining separate residences), and to have been substantially maintained by her, between their chance meeting in August 2012 and her death in October 2014.

THE NATURE OF A CLAIM TO BE AN “ELIGIBLE PERSON” UNDER Section 57(1)(f)

20. Until shortly before the hearing of his application, the plaintiff claimed to be an eligible person, not only by virtue of section 57(1)(f) of the Succession Act, but, primarily, by virtue of section 57(1)(b) as “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”. Upon inquiry at the commencement of the hearing, counsel for the plaintiff expressly abandoned any reliance on section 57(1)(b) and confined the plaintiff’s case to reliance upon section 57(1)(f). The plaintiff does not now claim to have been living with the deceased in a de facto relationship at the time of her death. The defendant does not contend that he was.

21. Section 57(1)(f) confers the status of an “ eligible person” on “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”.

22. The concept of a “close personal relationship” is defined, for the purpose of section 57(1)(f), by sections 3(3) and 3(4) of the Succession Act. Those subsections are in the following terms:

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

(4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a)   for fee and reward, or

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

23. Although highly critical of the quality and continuity of any care provided by the plaintiff for the deceased, the defendant accepts that, but for three impediments, the plaintiff might be able to bring himself within section 57(1)(f) as informed by sections 3(3) - 3(4).

24. On the defendant’s case, those impediments are: First, the plaintiff and the deceased were never “living together” within the meaning of section 3(3); secondly, payments made by the deceased to or for the benefit of the plaintiff during her lifetime (or, perhaps more accurately, expectations that such payments would be made) were such as to activate the exclusionary provision found in section 3(4)(a); and, thirdly, the plaintiff had substantially abandoned the deceased towards the end of her life, so that he cannot be said to have been living in a close personal relationship with her at the time of her death, as required by section 57(1)(f).

25. In submissions bearing upon the proper construction and operation of sections 3(3) - 3(4) of the Succession Act, the plaintiff relied upon my judgment in Skarica v Toska [2014] NSWSC 34 (which specifically considered those provisions) and the defendant relied upon the judgment of Kunc J in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 (which considered analogous provisions in sections 5(1)(b) and 5(2) of the Property (Relationships) Act 1984 NSW), judgments said to be at variance in their consideration of section 3(4)(a) of the Succession Act.

26. The parties are agreed that the concept of “living together” in section 3(3) of the Succession Act does not necessitate the existence of a single residence: Popescu v Borun [2011] NSWSC 1532 at [51]; Bayssari v Bazouni [2014] NSWSC 910 at [43]. They accept that people can “live together” in more than one residence and that people may, jointly or severally, have more than one home which, from time to time, they separately occupy. Nor is it a prerequisite of “living together” that people spend all of their time together: Amprimo v Wynn [2015] NSWCA 286 at [77].

27. The concept of “living together” in the definition of “close personal relationship” is adaptable to the reality of domestic life in this respect, constrained not by a requirement that people live together “as a couple” (Hayes v Marquis [2008] NSWCA 10 at [75]-[76]), but by a relationship that is close, personal and attended by provision by one or each of them to the other with domestic support and personal care (Dridi v Fillmore [2001] NSWSC 319 at [102]-[104]; Barlevy v Nadolski [2011] NSWSC 129 at [25]; Holden Francis Frisoli v Natasha Anastasia Kourea [2013] NSWSC 1166 at [45]-[47]).

28. In the present case, the fact that the plaintiff and the deceased held themselves out to the public as “nephew” and “aunty” might reasonably be thought to have been an impediment to a finding that they were “living as a couple” (an element of a “de facto relationship” required by section 21C(2)(a) of the Interpretation Act 1987 NSW with an emphasis, reflected in section 21C(3)(i), on the reputation and public aspects of a relationship), but it is not inconsistent with the idea of persons who, living together, provide, within a private relationship, domestic support and personal care.

29. The concept of “living together” has a dimension that focuses on the quality of a relationship rather than mere physical proximity: Hayes v Marquis [2008] NSWCA 1 at [75]-[83]. Ordinarily, it might be expected to be associated with the concept of “family” in its broadest sense, importing social intimacy rather than a formal, blood tie (Skarica v Toska [2014] NSWSC 34 at [39]-[43]) or sexual relations (Amprimo v Wynn [2015] NSWCA 286 at [77]) as a prerequisite.

30. In Skarica v Toska [2014] NSWSC 34 at [37] I noticed that, whereas section 3(4)(a) of the Succession Act uses the expression “fee and reward” , section 5(2)(a) of the Property (Relationships) Act 1984 uses the expression “fee or reward” and I remarked that nothing appears to turn on the distinction. I proceeded upon an assumption that section 3(4)(a) can be read, more naturally and without harm to the Succession Act, as if it said “fee or reward”. Neither party to these proceedings challenges that assumption. Accordingly, I adhere to it.

31. I do not myself apprehend that there is any substantial difference between my construction of section 3(4)(a) of the Succession Act in Skarica v Toska [2014] NSWSC 34 [2014] NSWSC 34 at [45] -[47] and Kunc J’s construction of section 5(2)(a) of the Property (Relationships) Act in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [360] - [379] generally or, more particularly, at [374] - [379].

32. Unless (contrary to my assumption) significance must attach to the word “and” in section 3(4)(a) of the Succession Act, and the word “fee” must be taken as a limitation on the breadth of the word “reward”, I do not read section 3(4)(a) as confined to an arrangement legally enforceable, whether in contract or otherwise. I agree that substantial importance attaches to the word “for”. I agree that the text of the legislation has primacy over its exposition. I agree that the legislation must be read as a whole and in a manner designed to give effect to its purpose. None of these propositions are controversial.

33. It is particularly important in family provision litigation not to confine the text, given the many different types of family relationships to which the Succession Act must respond.

34. In Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [376] - [377] Kunc J wrote the following, which I am quite content to adopt:

“[376] … [A] party wishing to rely on section 5(2)(a) [of the Property (Relationships) Act] must satisfy the Court that there is a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care for the purpose of eliciting the identified fee or reward. So understood, such an arrangement might be seen as the origin of, or motive for, what would otherwise be a close and personal relationship under the [Property (Relationships) Act]. It is to be contrasted with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship.

[377] It is common human experience that a close personal relationship will involve an expectation of mutual benefit and support in each party. An example of such a benefit is the provision of free accommodation to the other person in the relationship who provides domestic support and personal care. However, while the free accommodation is undoubtedly a ‘reward’, where it and the provision of domestic support and personal care are manifestations of the close personal relationship rather than the immediate and advised motivation for it, section 5(2)(a) will not be engaged.”

35. The contrast his Honour drew is not unlike the contrast I drew, more summarily, in Skarica v Toska [2014] NSWSC 34 [2014] NSWSC 34 at [45] between a “domestic” arrangement and a “commercial relationship” and, at [46], between “an essentially private relationship” and a “business”. In each case attention is given to characterisation of the dominant, causative factor(s) in the provision of domestic support and care: Is it, or are they, found in the parties’ personal relationship or in the prospect or fact of material gain? A dominant commercial imperative in the provision of domestic support and care might reasonably be seen as inconsistent with the concept of a family provision order.

36. In exposition of sections 3(3) - 3(4) of the Succession Act such contrasts are difficult to avoid, particularly as the expression “close personal relationship” is defined, primarily, by reference to the same set of words, qualified by requirements for “living together” and provision of “domestic support and personal care”, and coupled with words of exclusion. There is an element of circularity in the definition which invites an endeavour to draw boundaries between what is, and what is not, within its contemplation.

37. The concept of “living together” is essentially relational; not constrained by formalities, though it might be attended by formality; not constrained by geography, though it might ordinarily be expected to have a geographical dimension; not constrained by a physical, or sexual, relationship, though that too might be present. It might be viewed as involving a quasi-family relationship, though care needs to be taken not to substitute expository gloss for the legislative text.

35. Elusive though the concept the subject of definition may sometimes be, its exposition may be informed by reflection on its broader legislative context. It is specifically associated, in the context of chapter 3 of the Succession Act, with the provision of “domestic support and personal care” (a central touchstone) in circumstances in which it is conceivable that, whether judged by reference to the standard of “a just and wise testator” (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20) or “community standards” (Andrew v Andrew (2012) 81 NSWLR 656), a court might conclude that “there are factors which warrant the making” of an application for family provision relief (section 59(1)(b)) and that, ultimately, such provision “ought” to be made for the maintenance, education or advancement in life (section 59(2)) of the applicant.

36. The interconnectedness of these concepts viewed as a whole, as they must be, is reinforced by the settled meaning attributed to the expression “factors which warrant the making of” an application found in section 59(1)(b). Such factors are those which, when added to facts which render the applicant for relief an “eligible person”, would give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 252 A-E.

37. By command of section 60(1), factors identified in section 60(2) as potentially relevant to a determination whether to make a family provision order, and the nature of any such order, are expressly identified as potentially relevant, also, to a determination whether an applicant for family provision relief is an “eligible person”.

38. It is not difficult, in this context, to see why practitioners customarily resort to language suggestive of a “moral duty” to make testamentary provision and the Court customarily both cautions against the use of such language (Andrew v Andrew (2012) 81 NSWLR 656 at [8]-[11]) and, just as readily, itself slips into language no less loaded in making the “evaluative” judgements required of it by Chapter 3.

39. A conscious effort is required in each case to consult the text of the legislation and the facts of the particular case bearing upon its application. It is the text of the legislation, not any expository gloss it calls forth, that must be consulted afresh in each case. Contrasts of the type found in both Skarica v Toska and Saravinovksa v Saravinovski (No. 6), however helpful they may be, cannot provide a substitute for the legislative text. Not all cases conform to the binary form of a contrast made to illustrate the operation of the text in a particular setting.

THE LEGISLATIVE FRAMEWORK GOVERNING THE PLAINTIFF’S APPLICATION

43. Given the textual interconnectedness of those provisions, and the nature of the judgements required of the Court, in relation to each provision and overall, it is not surprising that, with nuanced shifts responsive to the language of each provision, the parties reiterated their respective case theories at each of the legislative hurdles the plaintiff must overcome to obtain a grant of relief under chapter 3 of the Succession Act; namely:

1. Section 57(1)(f), read with sections 3(3), 3(4)(a) and 59(1)(a);

2. Section 59(1)(b);

3. Section 59(1)(c); and

4. Section 59(2),

and in consideration of the factors specified by section 60.

44. The terms of the other provisions having been sufficiently set out earlier, I here set out the terms of sections 59(1)(c), 59(2) and 60, so far as material:

“59 When family provision order may be made

(1) The Court may … make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: …

(c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. …

60 Matters to be considered by Court

(1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining:

(a) whether the person in whose favour the order is sought to be made (the "applicant" ) is an eligible person, and

(b) whether to make a family provision order and the nature of any such order.

(2) The following matters may be considered by the Court:

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c) the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e) if the applicant is cohabiting with another person-the financial    circumstances of the other person,

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g) the age of the applicant when the application is being considered,

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i) any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l) whether any other person is liable to support the applicant,

(m) the character and conduct of the applicant before and after the date of the death of the deceased person,

(n) the conduct of any other person before and after the date of the death of the deceased person,

(o) any relevant Aboriginal or Torres Strait Islander customary law,

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

45. The defendant’s case focused attention on section 60(2)(m) in relation to alleged conduct of the plaintiff described by the defendant (not accurately, but in an allusion to section 3(2) of Testator’s Family Maintenance and Guardianship of Infants Act 1916 NSW, long since repealed) as “conduct disentitling”.

46. Section 3(2) of the 1916 Act provided that:

“[The] Court may attach such conditions to [an order for provision] as it thinks fit, or may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order.”

47. In In re the Will of FB Gilbert (dec’d) (1946) 46 SR (NSW) 318 at 321 Jordan CJ described “disentitling conduct”, in the context of section 3(2), as “character or conduct relevant to the purposes which the [1916] Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default”.

48. No provision comparable to section 3(2) was included in the Family Provision Act 1982 NSW upon repeal of the 1916 Act. Nor is there any comparable provision in chapter 3 of the Succession Act, which replaced the 1982 Act. Section 9(3)(b) of the 1982 Act was in terms substantially the same as section 60(2)(m) of the Succession Act. Nevertheless the concept of “conduct disentitling” lives on in popular imagination.

49. Analytically, the concept needs to be approached with caution. This is particularly so in an environment (commonly encountered these days in claims for family provision relief by “adult children”) in which the relationship between a claimant and a deceased person may bear the marks of estrangement. Section 60(2)(m) of the Succession Act has a broader, more flexible focus than section 3(2) of the 1916 Act. It does not employ the word “disentitling”. It appears in the context of legislation that requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619 at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780 at [120]-[124]; Page v Page [2016] NSWSC 1218 at [112].

50. Accepting that the defendant’s case focuses attention on section 60(2)(m), counsel for the plaintiff invited the Court to give close attention also to paragraphs (a)-(d) and (f)-(l) as well as the catch-all paragraph (p). Only paragraphs (e), (n) and (o) can be disregarded. In short, the Court is here called upon, as in section 59, to have regard to “all the circumstances of the case” This, I trust, I do (deliberately, if, at times, only implicitly) upon consideration of each element required to be proved by the plaintiff in support of his case.

THE PLAINTIFF’S CASE

51. The case for which the plaintiff contends (and, in substance, has made out) can conveniently be summarised by paraphrasing his counsel’s written submissions, lightly edited:

“[8] There is evidence in the plaintiff’s affidavits, which if accepted, will establish he is an eligible person. There are factors warranting the making of his application, because he is a person who would naturally be regarded as [an] object of the deceased’s testamentary bounty, as she regarded him as next of kin…. He is in a perilous financial position. He owns nothing of any value, he is in receipt of a disability pension, and is presently sleeping in a goods storage facility, or in a tent in public places.

[9] [The plaintiff and the deceased] had known each other for many years which included a period of intimacy, around 40 years ago.

[10] In approximately August 2012, after his same-sex partner died, and her husband [sic] died, they resumed a close and intimate relationship. At the time, [the plaintiff] was renting a flat at [Manly]. [The deceased] was living in a room in [a nearby hotel]. She had cancer of the lymphatic system, and was immobile. She was dependent for income on the rent from her properties. From then, until the time of her death, they spent most of their time in each other’s company, including during her hospital admissions. She had no one else in her life. Her brother [the defendant] had lived in Perth since 1981, and they had limited contact.

[11] [The plaintiff] spent his days and part of his nights caring for her, at various locations, including… [a] motel [in] Frenchs Forest, where she died in a unit.

[12] During the relationship, she had approximately 12 admissions to various hospitals and institutions, and listed [the plaintiff] in 10 of those as her next of kin. He was apparently her only visitor, spending large periods with her, including sharing meals, provided by the hospitals.

[13] As her health and mobility declined, she was almost entirely dependent upon him. She refused care offered to her from the hospitals, social workers and medical professionals, and made it clear to him, and her solicitor… that she would not go into a nursing home.… At times she refused to allow him to get attention for her, because of that concern.

[14] [The plaintiff] is 65 years of age, has never married or had children, is unemployed, lives alone, and has been in receipt of a disability pension for his psychiatric conditions since 1993.

[15] … He has not worked regularly since 1993, except for an eight month period between September 2013 and April 2014, when he was employed under contract as a business analyst.…

[16] Though tertiary educated, he is unemployed. He has no assets of any value. His present liabilities total approximately $57,000.00. His income disability pension is exceeded by his modest living expenses.…

[17] His needs… include security of accommodation.

[18] [The plaintiff and the deceased] were living together in a [motel] unit at ….. Frenchs Forest at the time of her death. It was her home. He stayed there, though not continuously.

[19] The evidence discloses a private, reclusive and unorthodox personal relationship between [the plaintiff and the deceased], which was geographically proximate, familial, distinguished by a special friendship, (perhaps love), and attended by the provision of support, care and attention by one to the other….

[20] They were ‘living together’ at the [Frenchs Forest] motel unit at the time of her death on 6 October 2014, and had been living there continuously since 10 March 2014. It was undoubtably [the deceased’s] residence. Although she owned three home units in Balgowlah [and other premises] she chose not to live in them.

[21] The concept of ‘living together’ has an element that focuses on the quality of the relationship, rather than mere physical proximity…. That quality existed between [the plaintiff and the deceased] because of the very intimate and close nature of their personal relationship.

[22] They each provided the other with ‘domestic support and care’. He provided it to her, and to some extent she provided it to him.

[23] His support and care included:

(a)   shopping for groceries and prepared food.

(b)   preparing and serving meals.

(c)   tidying up.

(d)   Self-care including toileting.

(e)   Assisting with mobilisation.

(f)   Assisting her to attend medical and hospital appointments.

(g)   Providing access to medical practitioners.

(h)   Obtaining pharmaceutical provisions, prescribed and non-prescribed.

(i)   Driving.

(j)   Providing her with a mobile phone and paying her phone account.

(k)   Providing her with therapeutic aids, such as a reclining chair and other accessories to make her life more comfortable.

(l)   Liaising with medical professionals and attending conferences with her.

(m)   Providing her with money.

[24] Although she provided him with limited financial assistance from time to time, such as when he got behind in rent, it was to some extent reimbursement for the financial assistance he provided her, at times from his pension, and significantly his own funds, in the six month period between September 2013 to April 2014 when he had contractual employment.… For instance, he paid the [Frenchs Forest] motel accommodation fees initially.

[25] What they did, each for the other, was in pursuit of ‘domestic’ arrangements, not for ‘fee and reward’, within the meaning of section 3(4)(a)). It was not a commercial relationship. The provision by [the plaintiff] of domestic support and personal care to [the deceased] cannot fairly or reasonably be described as having been provided ‘for fee and reward’. He was not receiving a Carer’s Allowance from the government.…

[29] The factors [warranting the making of the plaintiff’s application for family provision relief, within the meaning of section 59(1)(b) [include:

(a)   [the plaintiff] was the only person in the deceased’s personal life. He provided her with kindness, companionship, care and practical support.

(b)   [The deceased] recognised his importance in her life by nominating him on most occasions as her next of kin, upon admissions to hospitals.

(c)   [The deceased] was adamant she would not go into a nursing home, and [the plaintiff] enabled her to stay in her own accommodation.

(d)   The level of care and attention, though not perfect by professional standards, was the best he could do in the circumstances, where she refused professional assistance. It should not be overlooked, that notwithstanding the considerable contact the deceased had with nurses, social workers, and other medical staff during her hospital admissions, no one apparently entertained concerns about her relationship with [the plaintiff] as her carer, or made application that a guardian be appointed for her.

(e)   [The plaintiff] was the only person to whom the deceased owed some obligation to make provision for from her estate.

(f)   The estate is large, and there are no persons with substantial competing claims on her bounty.

(g)   His situation in life is desperate, and he is in extreme need of financial assistance. He has no other resources at his disposal….

[31] [As regards the competing interests of the defendant, he] is aged 67, married with adult children, and has lived in Perth for 36 years. He has not put forward any evidence of his personal or financial circumstances. He inherited $1,300,000.00 in 2008. In 2014 … real property owned equally with [the deceased at Manly Vale] was sold for $1,005,000.00. The inference is that he is very comfortable.

[32] He received his interest in the deceased’s estate not by virtue of a Will, but on intestacy.

[33] The defendant, notwithstanding his blood relationship to [the deceased], has little moral claim on her testamentary bounty. They had nothing, or very little to do with each other for many years, though he was aware of her poor health. He provided no assistance to her as her health declined, in the latter part of her life, though apparently in a position to do so. The only person in her life was [the plaintiff].

[34] The absence of any testamentary provision for the plaintiff, in combination with the factors which warrant the making of [the plaintiff’s] application, form the basis for a finding [under section 59(1)(c)] that adequate provision has not been made for the proper maintenance, education and advancement in life of the plaintiff.

[35] Having regard to the factors enumerated in section 60(2) of the Succession Act 2006, and the terms of section 59(2) provision ought to be made for the maintenance, education or advancement in life of the plaintiff. Allowance must be made for the close, intimate and unique nature of the relationship between him and [the deceased], at a time when her health was declining and she was dependent upon the support of others for her care, in circumstances where her only blood relation, her brother, was either unable, or unwilling to provide assistance to her.”

52. In all but one of the records adduced in evidence naming somebody as “next of kin” of the deceased, the person named was the plaintiff. The exceptional case recorded the deceased’s solicitor as “next of kin”, in fact as “guardian”: Court Book page 256. Through the defendant’s counsel, the solicitor confirmed that she never held an appointment as the deceased’s guardian. For his part, the plaintiff recorded (at Transcript page 166) that, to his knowledge, no person had been appointed as legal guardian of the deceased. “She would have been too frightened to do that”, he said.

53. Although the plaintiff invited the Court to measure his “moral claim” on the bounty of the deceased against that of the defendant, counsel for the plaintiff accepted, correctly, that it is for the plaintiff to prove his case for a grant of relief, not for the defendant to establish a claim against the deceased’s estate.

52. The fact that the deceased died intestate, perhaps without giving any deep thought about the proper disposition of her estate, is not to the point. Whether she did or did not consciously reflect at length upon what would happen to her estate upon her death is unknown; but we do know from the evidence that: (a) the substance of the deceased’s wealth was acquired as a beneficiary of the deceased estates of her mother and her older brother whose estates were administered as intestate estates, to her benefit; and (b) with experience of administration of an intestate estate in the family of her birth, the deceased might reasonably be thought to have made a conscious decision to die intestate, allowing her estate to be inherited by the defendant by operation of law.

53. Although it is for the plaintiff to prove a case, and not for the defendant to establish a claim on the estate, significance does attach to a deliberate forensic decision made by the defendant to adduce no evidence regarding his own financial circumstances. The Court may infer from his silence that he has no need for provision from the estate and, on a comparative basis, he is significantly better off than the plaintiff: Tobin v Ezekiel (2012) 83 NSWLR 757 at [94]; Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23].

54. The leading case on this is a judgment of Justice Hallen in Sammut v Kleemann [2012] NSWSC 1030, in which, at [137]-[140], his Honour made the following observations:

“[137] The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany [2011] NSWSC 1549 at [49] - [51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548.

[138] However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the [Succession] Act.)

[139] Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased);Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty".

[140] The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier.”

57. His Honour recently affirmed those observations in Jodell v Woods [2017] NSWSC 143 at [29]-[30] and Meres v Meres [2017] NSWSC 285 at [86].

58. In the former of these cases, his Honour wrote of a female beneficiary: “Of course, she is entitled to elect to remain silent about her financial resources and needs, and simply to look to the Court to not disregard the deceased’s freedom of testamentary disposition and the deceased’s preferable disposition to her as the sole beneficiary, regardless of her financial position or needs. Section 61 of [the Succession Act] provides that her interests, as a beneficiary, cannot be disregarded, even though she has not made an application [for family provision relief].”

59. Section 61 is in the following terms (with emphasis added):

“61 Other possible applicants

(1) In determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person’s estate) but who has not made an application.

(2) However, the Court may disregard any such interests only if:

(a) notice of the application, and of the Court’s power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or

(b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case.”

60. The words of exception, in parenthesis, in section 61(1) are not confined to a beneficiary named in a Will. They apply no less to a beneficiary in an intestate estate.

61. What, if any, inferences can be drawn from a beneficiary’s silence in the case of an intestacy may depend on the circumstances of the particular case, taking into account all the circumstances of the case. However, at least in a case such as the present (where there is evidence of contact, albeit perhaps less than regular contact, between family members) there is no foundation for drawing against the defendant an inference stronger than that which would have been drawn had he been a testamentary beneficiary who remained silent about his financial circumstances.

THE DEFENDANT’S CASE

62. The defendant’s case can also conveniently be articulated by paraphrasing his written submissions:

“[54] Under [section 57(1)(f) of the Succession Act], it is not necessary [for the plaintiff and the deceased] to live together full-time but the relationship must be demonstrated to have an ongoing aspect of closeness or intimacy that is not necessarily physical or sexual.…

[55] [The plaintiff’s] evidence fails to demonstrate that he satisfies this category of eligibility. Further, he cannot overcome the statutory bar imposed [by section 3(4)(a)) of the Succession Act], as there is ample evidence that [the plaintiff] was being paid to care for [the deceased], for fee or reward.…

[56] Even if [the plaintiff] can meet the test for eligibility, he must also convince a Court that there are factors warranting the making of the application (section 59(1)(b))….

[58] There are no factors warranting the making of a family provision order in this matter, and [the plaintiff] – as an occasional carer, and someone of whom [the deceased] was fearful – would not have been a ‘natural object of testamentary intention’.

[59] An issue to be determined by the Court [upon a consideration of adequacy of provision made for the plaintiff] is the disentitling conduct of [the plaintiff], before and after [the deceased’s] death [section 60(2)(m)].

[60] … The Coroner’s records [relating to the death of the deceased] have been obtained on subpoena.

[61] The coronial investigation has raised concerns about the care provided to [the deceased] leading up to her death. [A medical report submitted to the Coroner], which is distressing reading, made the following conclusions:

(a)    ‘The development of the large and open infected pressure areas [on the body of the deceased] strongly suggests that she had not received any appropriate care in her chair and was not moved or had her position changed in the chair for long periods of time’ …

(b)   ‘The extent and severity of the pressure areas strongly suggests that she received very little personal care over several weeks.’ …

(c)   ‘… should have promoted a “reasonable person” to seek urgent medical and nursing assistance despite her reluctance’….

(d)   ‘… the carer had a very poor understanding or responsibility or recognition that the deceased was gravely ill and had a very short prognosis of hours to days’.

(e)   ‘… the carer had little or no understanding or recognition of the symptoms and suffering that the disease had inflicted on the deceased….’

(f)   ‘Even if [the deceased] did not wish… to have treatment for her breast cancer, or had wished to die as quickly as possible, or refused personal care: the appropriate provision of palliative care by a carer would have still been able to provide her with better symptom management, emotional and psychosocial well-being and an improved quality of life and death’.…

[62] [The deceased] died alone and in squalor. She had been neglected for days and weeks prior to her death.

[63] [The plaintiff] gave little or inadequate care to [the plaintiff] in her final days and weeks. His conduct was callous and indifferent. His lack of care is sufficiently grave, on the opinions expressed in the Coroner’s file, to constitute disentitling conduct.

[64] [The plaintiff] does not discharge his onus. He is not an eligible person. The Court can be satisfied that there was no de facto relationship between [the plaintiff and the deceased] at the time of her death. He was not dependent on her and a member of her household, nor was he in a close personal relationship with [her] as at the time of her death. His claim must fail.”

GENERAL OBSERVATIONS ABOUT THE CASE

63. The defendant’s case was put forcefully, after a lengthy cross examination of the plaintiff which included a substantial attack on his credit, an incidental effect of which was to validate the plaintiff’s claim that he suffers a mental health disability.

64. In fairness to him, senior counsel for the defendant conceded in her closing submissions that the plaintiff had acted as a carer for the deceased; that “their relationship was that of a fond carer and a fond provider of care” (Transcript page 223 lines 41-42); and that the defendant did not contend that the plaintiff had caused, or contributed to, the death of the deceased (Transcript page 192 lines 4-15).

65. In fairness to the defendant, counsel for the plaintiff conceded that the defendant had visited the deceased in Sydney as late as May 2014 and had maintained contact with her via telephone. The defendant, his wife and two of their children also visited the deceased in 2006. He and his wife visited Sydney twice in 2011.

66. Each party trode warily about the nature and extent of problems with the mental health of the plaintiff and the deceased, problems which were apparent in the evidence (and in cross examination of the plaintiff) notwithstanding the absence of any expert medical evidence directed specifically to such topics. Some medical records of the plaintiff were admitted into evidence, but they were not directed to the point in a meaningful way.

67. The plaintiff frankly (and, I accept, honestly) disclosed his history of mental illness. Although senior counsel for the defendant was loathe to concede the plaintiff’s disability, it was manifest in his manner of giving evidence, with a tendency towards rambling, unresponsive answers, rapidly delivered (“a torrent of words”, in senior counsel’s description); his unabashed defence of misleading statements about his financial circumstances made to his bank because of a perceived necessity “to survive”; his ready acceptance that, for much the same reason, he had been justified in breaking a promise to a friend who had given him a substantial amount of money to discharge a debt upon an undertaking not to acquire further debt; his inability to sustain stable employment on an ongoing basis; his tendency to live in, to gravitate towards squalid conditions; and his manifestation of a self-absorbed, obsessive, almost naive but nevertheless manipulative side to a personality which, whether in the context of a long term same-sex relationship or his relationship with the deceased, had a tendency to take refuge in an imagined privacy about the nature of personal relationships.

68. In his own perception, experience of a need for subterfuge in maintenance of his relationship with his partner of many years, BW, bent him towards maintaining a degree of subterfuge in public presentation of his relationship with the deceased. That tendency of mind was reinforced by a sense of game-playing in his description of his relationship with the deceased as that of “nephew” and “aunty”, a fantasy in which she appears actively to have participated. His description of himself as the deceased’s “nephew” carried over from his earlier, public description of himself as BW’s “nephew” during the course of that relationship: Transcript pages 165-166.

69. He scrubbed up well, in a neat suit, in his attendances at court; but, early in his cross examination, he broke down emotionally, ostensibly in contemplation of BW, explaining that he continued to grieve for BW, and to hold onto belongings of BW, in whose clothes he was then dressed: Transcript page 65 line 40-page 66 line 9.

70. Without intending to be exhaustive, I draw to attention seven aspects of the evidence which provide other illustrations of the plaintiff’s capacity, character and personality.

71. First, there is the voice recording (Exhibit P5) and transcript (reproduced at Court Book page 172) of the plaintiff’s telephone call to 000 at about 10.47 p.m. on 6 October 2014, shortly after he discovered the deceased’s dead body, taken with evidence of a conversation, the following afternoon, between the manager (and a member of the staff) of the hotel in which the deceased died and the plaintiff.

72. Throughout the plaintiff’s 000 call he sounds, by turns, so distraught that he cannot speak and, then, perfectly calm. At one point he both appears to deny that the deceased was a friend of his and to embrace the proposition that “We’re very, very close, and ah, we both lost our partners and just held on to each other”. Through recurrent sobbing, he told the 000 operator that the deceased had developed “quite bad bedsores”, but that she had kept saying that she was getting better; that he had been doing everything he could to get fluid into her that day; that she did not want to die in hospital or to be shoved into a nursing home; that she feared that, if he called a doctor or something like that, she would end up in a nursing home and never get out; and that she feared being tortured to death in a nursing home.

73. On balance, I hear an authentic voice speaking truth; but, it can be acknowledged, another ear might hear a different message.

74. Another ear might be reinforced in hearing a different voice by taking note of the plaintiff’s conversation with the hotel manager and staff member at about 3.30pm on 7 October 2014. That conversation was in terms to the following effect:

The Manager: “It’s sad news about [MPS]. The police have been here and the room’s been cleared out.”

The Plaintiff: “No. This shouldn’t have happened.”

Staff Member: “The solicitor rang up this morning and she seemed upset.”

The Plaintiff: “Who told her? She is not meant to know. This has ruined everything.”

75. An inference which the defendant invites the Court to draw is that the plaintiff dissembled in his conversation with the 000 operator as part of a strategy of creating an impression of concern whilst, at the same time, attempting to exclude the deceased’s solicitor from involvement in management of the deceased’s estate.

76. I do not exclude the possibility that, at the time the plaintiff spoke to the hotel manager, a manipulative, acquisitive side of his personality came to the fore. However, the fact that it did (assuming that it did) can be explained by his disability. The hotel manager records that, as the plaintiff spoke, “he was becoming more angry as he was shaking his head, waving his arms and raising his voice.”

77. The prism through which the plaintiff saw the deceased’s solicitor was not unlike that through which the defendant sees him. In his pitch to the deceased for a budget (the second piece of evidence to be highlighted), the plaintiff complained about the expense of having the solicitor attend to everyday business of the deceased.

78. A fair inference from the whole of the evidence is that, independently of money considerations, the plaintiff saw the solicitor as a threat to his control of the deceased’s affairs, a form of interference with his relationship with the deceased. In that, at least, he was not mistaken. As events transpired, the solicitor and the defendant having taken charge, the plaintiff was not invited to the deceased’s funeral. As he may well have anticipated, he was not only marginalised, but excluded.

79. The second piece of evidence to be noted is a document (typed but bearing notes in the plaintiff’s hand) which, he deposes, he prepared to demonstrate to the deceased how much money she was spending on alternative carers “when it would have been cheaper to allow me to feed her in the morning (in addition to other meals and my other carer’s responsibilities), and use the money to buy necessary items, pay for our expenses and our debts”: Court Book pages 63-71, 220 and 224-231.

80. The document forms a foundation for the defendant’s contention that, by reason of section 3(4)(a) of the Succession Act, the plaintiff was not in a “close personal relationship” with the deceased. It is capable of being read as a pitch by the plaintiff, to the deceased, to take over her affairs on terms that would provide for him remuneration, provision for his welfare and access to her bank accounts.

81. Though I accept the plaintiff’s explanation of the origins and purpose of the document, it cannot reasonably be read otherwise than as (in part) a pitch for funds, albeit in the form of funding for the parties’ joint and several care. Ms FM (a carer whom the plaintiff was seeking to displace) deposed that that is how the deceased read it. On the other hand, it bears something of the character of a “family budget”, intermingled with proposals for better care of the deceased, evidencing a concern about the deceased’s bedsores, hinting at resentment about the role, and prohibitive costs, of the deceased’s solicitor in the day-to-day affairs of the deceased, and demonstrating a resolve to stick by the deceased in her hour of need.

82. On any view, it is a curious document, not readily understood without acknowledgement of the plaintiff’s disability.

83. The third piece of evidence of note is correspondence between the plaintiff and his bank, Westpac, in which he was attempting to stave off the bank as a creditor by express statements to the effect that he was working, for defined remuneration, as “carer” for his “aunty” (the deceased): eg, Exhibit D14, page 2 (an email dated 5 May 2013), page 5 (an email dated 30 May 2013).

84. In fact, there was never any formal agreement (legally enforceable or otherwise) for the plaintiff to work as the deceased’s carer for remuneration. She paid in money from time to time, he sought it from time to time. When she gave him more money than was necessary for a particular task, he retained it for his own benefit. From time to time, although one cannot imagine an accounting favouring the deceased overall, he expended funds of his own on the deceased. He wrote what he wrote to his bank as an adversary not entitled to a truthful account from him. Again, it is difficult to appreciate that mindset without allowing for his disability.

169. Having earlier summarised Kunc J’s reasons, Emmett AJA made the following observations in paragraphs [167]-[168] of his judgment:

“[167]   The findings made by the primary judge [Kunc J] cannot support a conclusion that Maria provided support and care to Chris in consideration of the statements made by him in Macedonia and in anticipation of, and in exchange for, the benefits that Chris subsequently conferred. Thus, the board, lodging and accommodation that Maria enjoyed with her family was not provided in consideration for domestic support and personal care but constituted an incident of the ongoing close personal relationship between her and Chris. Board, lodging and accommodation were necessary for the continuation of the relationship and for Maria to undertake the tasks that she performed, such cooking, cleaning, washing, shopping and the like.

[168] The primary judge did not err in concluding that the domestic support and person care provided by Maria was not provided for fee or reward. It follows that s 5(2)(a) of the Property Act is not enlivened.”

The Parties’ Supplementary Submissions

170. In his supplementary submissions the defendant: (a) maintains his submission that the plaintiff and the deceased were never “living together”; and (b) contends that, if they were living together, the plaintiff’s purpose (or, at least, his primary purpose) in doing so was monetary, such that the Court should hold that his provision of domestic support and personal care to the deceased was “for fee or reward”, not as an incident of a close personal relationship.

171. In his supplementary written submissions the plaintiff maintains the contrary case.

172. In elaboration of his submission that he and the deceased were “living together” he summarises the plaintiff’s evidence (which I accept as substantially correct) about what was a typical day for him and the deceased, and the nature and extent of his regular, personal interactions with the deceased. See paragraphs [51] and [106] of my principal reasons for judgment.

173. The plaintiff further contends that the domestic support and personal care provided by him to the deceased was an incident of a relationship primarily based on friendship and love. He draws attention to the fact that he was with the deceased on each of her hospital admissions between December 2012 and March 2014, with her acquiescence; she had him listed as her next of kin on nearly all her hospital admission records during that period; he liaised with hospital staff, advocated for her when she was in hospital, and made arrangements for her admission to hospital and discharge; he attended hospital case management meetings relating to the deceased; and he arranged her accommodation on each discharge from hospital.

174. In answer to the question suggested by Leeming JA in paragraph [41] of his Honour’s judgment (Why did the plaintiff provide domestic support and personal care for the deceased?), the defendant contends that the plaintiff did it “for money”. The plaintiff contends otherwise, that he did it as an incident of a friendship founded on mutual care, support and practicality, enabling both parties to live in a functioning, personal relationship.

Findings

175. In my assessment, the facts of the case fit the paradigm for which the plaintiff contends, not that for which the defendant contends.

176. Nothing in the judgment of the Court of Appeal requires a departure from the scheme of orders proposed in paragraph [141] of my principal reasons for judgment.

Orders

177. Accordingly, for the reasons set out in my principal reasons and supplemented by these reasons, I make those orders.

178. Accommodating the defendant’s foreshadowed appeal, I also reserve to the defendant liberty to apply for a stay of the orders if and when a notice of appeal (with grounds of appeal specified) is filed in the Court of Appeal. If there is agreement between the parties on the terms upon which a stay should be granted, I will entertain an application for a stay in chambers.

179. There is no immediate need, today, to consider whether a stay should be granted because no grounds of appeal have been articulated, and the effect of the orders made is such that, subject to further orders, any moneys payable to the plaintiff are to be paid into court to abide orders of the Court, not to or at the direction of the plaintiff. This scheme of orders might, within its own framework, obviate any need for a stay to be sought or granted.

180. Having regard to the personal circumstances of the plaintiff, I assume that a condition of any grant of a stay would be that the defendant prosecute his appeal with all due expedition.

Amendments

30 May 2017 - Addendum (30 May 2017)

Decision last updated: 30 May 2017