Gebalski v Paraskevopoulos

[2001] NSWSC 1012

CITATION:	Gebalski v Paraskevopoulos [2001] NSWSC 1012
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 2294/01
HEARING DATE(S):	07/11/01
JUDGMENT DATE:	7 November 2001
PARTIES :	Richard Gebalski v Popi Paraskevopoulos
JUDGMENT OF:	Master Macready at 1

COUNSEL :	Mr Enright for plaintiff Mr P.T. Russell for defendant
SOLICITORS:	Jenny Bull & Company for plaintiff Coustas & Co for defendant
CATCHWORDS:	Family Provision. Application by son suffering from HIV who is nearly blind. Estate left to deceased's neighbours. - Order for legacy in favour of son.
DECISION:	Paragraphs 36 and 37.

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Henrietta Gebalski who died on 1 November 2000. The deceased's husband predeceased her, dying on 8 August 2000. The deceased was survived by her son, who is the plaintiff in these proceedings.

2   Under her will, which was made on 21 July 1995, the deceased left her estate to her husband but, in the event of him not surviving for thirty days - which, of course, happened - she appointed the defendant executor and gave the defendant and her husband the whole of her estate. The defendant and her husband were next-door neighbours of the deceased who had known the deceased for some years.

3   The estate consists of the following assets:

Bank accounts $ 43,700
Property at 6 Edward Street, Bankstown $310,000
NRMA shares $ 1,344
Total $354,844

4   There are debts of the deceased amounting to $7,801, leaving a balance of $347,043. From this has been deducted the sum of $10,000 which was the result of an interim award made in favour of the plaintiff in September of this year.

5   There have been substantial costs incurred in the preparation of this matter. The plaintiff's costs to date amount to $45,833. The defendant's costs are $37,600, a total of $83,433. There is thus at present a likely distributable estate of $263,610.

6   It is necessary to deal with a little of the family history. The deceased's father was born in 1921 in Poland and his mother was born in Belarus in 1926. They married in 1946 and migrated from Germany to Australia in 1947. The plaintiff was born on 27 November 1950 and he completed the higher school certificate in 1968 at St Patrick's College, Strathfield. He studied for several years at the Conservatorium of Music, but did not graduate.

7   In 1970 he left home. At that stage there was a rift in the relationship between himself and his father relating probably to his homosexuality. It was in 1976 that the plaintiff went overseas and he received a letter from his father that prompted a restoration of the relationship between the plaintiff and his father. There had always been a cordial relationship, according to the plaintiff, between himself and his mother .

8   Over the period from when he left home until about 1970, the plaintiff had a number of different jobs, generally in employment in the hospitality industry doing bar work, management, et cetera.

9   His father had a heart attack in 1986 and then retired from work. Also in that year, the plaintiff was diagnosed as HIV positive and commenced to suffer from AIDS. In 1990 he got to the point where he had to stop work because of his illness and he was provided with a Housing Commission flat. From 1992 to 1993 the plaintiff had become totally blind in the left eye and he had retinitis in the right eye, which has caused gradual blindness. In October 1993 he was admitted to the Royal Prince Alfred Hospital for his illness and was unconscious for some time. In December he was discharged from Prince Alfred and subsequently recovered. In March 1995 the plaintiff was readmitted to Royal Prince Alfred Hospital with an HIV related illness.

10   On 21 July 1995 wills were made by the deceased and also by the plaintiff's father in similar terms. In 1996 the plaintiff had further eye surgery and, by this stage, was completely blind in the left eye.

11   On 8 August 2000 the plaintiff's father died. The deceased herself died on 1 November 2000. The plaintiff moved into his specialist accommodation in Bobby Goldsmith House, which is run for people with disabilities such as those from which he suffers, in October last year.

12   Probate was granted in March this year and the summons filed in April within time. An interim order, which was made by me, was made on 6 September this year and that amount paid on 4 October.

13 In applications under the Family Provision Act, the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At p 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

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

14   In accordance with what has been said by the High Court, it is necessary to look at the plaintiff's situation. He is fifty years old, single and has no dependants. He has some furniture and personal items of no great value. He has at the moment a bank account which has $9,756 in it and this is a result of the payment by way of interim provision. He lives on a disability pension which is $553 per fortnight. He pays rent of $180 per fortnight, leaving him with a net figure of $187 per week. He is currently living and incurring expenses slightly over that. He says he is now spending about $219.95 a week. He can do this because of the award that has been made.

15   However, for some years he was living on the small amount of the pension and making do, quite often foregoing many things in order to survive. At times he was helped by his parents. I have already referred to his medical difficulties. They are obvious and self-evident and do not need elaboration. He is fortunate in that he has managed to survive through to the present day, when there are substantially better medications that are available to treat people with his illness. His life expectancy is, of course, a matter of concern and is very relevant to this case.

16   There is evidence by Dr Workman, who does a lot of work in this area, and also by Dr David Sutherland, a specialist clinical immunologist. He has given a very detailed report which sets out the history of treatment of this disease. Both he and Dr Workman have estimated that the plaintiff has a ninety-five percent chance of surviving for one year; a ninety percent chance of surviving for two years; an eighty percent chance of surviving for five years and a seventy percent chance of surviving for ten years. No estimate is given beyond that.

17   There has been some debate before me about the relationship between the deceased and the plaintiff. Importantly, it is the relationship between the deceased and the plaintiff and, strictly speaking, it probably does not encompass the relationship with the plaintiff's father. However, as the evidence has addressed both in general ways and because one may impinge on the other, I will deal with them.

18   I have already mentioned that the plaintiff has said that, after he finished a homosexual relationship in 1977, he restored his relationship with his parents. In particular, in para 37, he said that over the last ten years he would exchange telephone calls two or three times a week, his parents would visit him about once a month, although his mother came less because she was not well, and that they would have lunch together.

19   There was cross-examination in which the plaintiff said that, prior to his becoming ill, he used to visit them on three or four occasions a year. He said that, after his illness, he would only go once or twice a year to Bankstown to his parents' house. The evidence does contain reference to an occasion in the 1980s when, at the request of his parents, the plaintiff went and looked after their house while they were away. In those circumstances, the evidence of observations by neighbours of how frequently he attended are probably not very accurate given there was not a lot of visiting. That, of course, does not mean that there was not any interaction.

20   The other evidence that has to be considered is evidence that has been given by the defendant and her husband. This is particularly in relation to the period from about 1995 onwards. There were complaints being made by the parents of the plaintiff that the son did not come out or help. For instance, at times in the 1980s or the 1990s, the plaintiff's parents were in hospital and there were complaints that he never came and visited them. It is apparent from some evidence given in the witness box that he was not aware of those visits to hospital. That either speaks of a lack of relationship or deliberately not giving information to the son.

21   The statements that were referred to in the defendant's affidavit are ones which certainly are complaints made by the deceased to the defendant. There is no reason to believe that they were not said, but one has to be cautious about accepting them at face value as evidence of the truth of what is said. Quite often people, particularly when they are elderly and perhaps are not being seen as much as they would like to by their children, do tend to make statements to other people to either elicit sympathy, help or for whatever other reasons might occur to them. Accordingly, I regard those statements with some caution.

22   The plaintiff himself gave evidence in a fairly careful and thoughtful way, and I am happy to accept what he says as accurate. It seems to me that the lifestyle which the plaintiff lived was perhaps something which was certainly foreign to his father. Statements, for instance, made to the defendant by the deceased indicate that the plaintiff's father had a problem with his son's homosexuality. He lived a life in the city, he worked in the entertainment industry and no doubt his friends came from the same background. His parents, on the other hand, lived at Bankstown. His father was a welder, probably living in a quite different world. In those circumstances, one can understand the parents feeling somewhat disappointed in the kind of lifestyle the son lived, but whether they are entitled to so feel is quite a moot question.

23   Holland J in Kleinig v Neal (1981) 2 NSWLR 532 at 540 said the following:

"If it is a case of parent and child, another circumstance is that the parent was responsible for bringing the child into the world and having done so assumed a duty to be concerned with the child's welfare. A wise parent will recognise that perfect harmony between parent and child is in the nature of things not to be looked for and that, coming to adulthood, a child will want to make his own life just as the parent had done before him. Differences of outlook between different generations is not exceptional, it is the general rule, so some friction between parent and child or disappointment in a parent's hopes and expectations concerning his child will be accepted by the wise parent as almost inevitable. If it occurs, the parent who is just as well as wise will not allow such disharmony or disappointment to blind him to the needs of his child for maintenance, education or advancement in life. The duty of a parent towards his child to provide for those needs on his death, if he can, continues in spite of such disharmony or disappointment and the statute obliges the court to consider whether it has been performed. The court must take in the whole scene and make the judgment that it considers that a wise and just parent would have made in the circumstances. Of course, as the statute provides, if the court considers that the character or conduct of the child has been such as to disentitle the child to any or any further benefit from the parent, it may refuse the child's claim."

24   In this case, I am satisfied that there was a reasonable level of contact between the plaintiff and his parents. Probably they were disappointed to an extent with how he lived and what ultimately has happened to him. In my view, I would not discount his claim as a result of the relationship that existed.

25   It is necessary to see if there are contributions made to the estate by the plaintiff. In this case the plaintiff has made none. It is also necessary to see whether in fact there has been any assistance provided to the plaintiff during his lifetime. The plaintiff gave evidence of his parents having provided $4,000 for a computer about two years ago and also two amounts of $1,000 when he was desperately short of funds to meet his expenses. He said that there were some other occasions when his parents had helped him out. Certainly he has had these benefits and those contributions have to be taken into account. What they do show, of course, is that in recent years the plaintiff has been living a very difficult life trying to survive on a pension which gives him $187 a week.

26   It is also necessary to look at the position of others who have a claim on the estate of the deceased. In this case it is the defendant and her husband. He is sixty-one and she is fifty-four. They have a daughter aged twenty-seven living at home, but the evidence does not say whether or not she is dependent upon them. They both work as cleaners. He makes $27,000 per annum gross and she $25,000. They own their home at Bankstown, which was next door to the deceased, which is worth $350,000. They presently have a mortgage on that of some $34,000 and that arose because they decided to help out their daughter who wished to acquire a house. They only have about $19,000 between them in superannuation. The defendant herself has a number of medical problems; for instance, she has Crohn's disease and various matters connected to that problem - anaemia, some arthritis, osteoporosis with a number of complications in respect of that illness. She has to take a substantial amount of medication, but she is still working.

27   It seems that the defendant and her husband got to know the deceased and her husband in the 1970s when they became neighbours. It was after 1986 when the deceased's husband had a heart attack that they started to help out and became good neighbours. They assisted with things to do with the garden and other odd jobs about the house. There was even more assistance given when the deceased's husband died and she was left alone.

28   It is necessary to see how the plaintiff says that he has been left without adequate and proper provision for his maintenance, education and advancement in life. The way in which that was put was expressed in the submissions and also in the evidence. The submissions set out the plaintiff's needs under the following headings:

(1) A capital sum to provide the plaintiff with
additional income over his lifetime of $360
per week; factor at 3% for 10 years = 451.7 -
Total $162,612. Discount by 20% to allow
for the chance of the plaintiff surviving
for 10 years = $130,089
(2) Computer, software and adaptive technology -
capital cost $ 9,825
(3) Ongoing computer costs - $2,080. Factor
for 10 years - weekly $40. Factor for 10
years 451.7 = $18,068, less discounted by
20% = $ 14,454
(4) Guide Dogs Association list, including
talking clocks, thermometer, CCTV, Aladdin
Genie, total $ 7,672
(5) White goods and electrical goods $ 1,646
(6) Furniture $ 5,856
(7) Emergency capital sum $ 50,000
(8) Dental work $ 10,000
Total: $229,541

29   The first item is a capital sum to increase the income of the plaintiff. The affidavit evidence set out earlier his expenses and how he managed to live, sometimes with a bit of help from his parents, on $187 a week. He is now spending $219 and he gave an estimate of the higher level of living which a weekly income of $553 gave him. This allowed him some little luxuries such as going to the theatre and concerts twice a month, going to films once a week, some wine, one dinner out and one lunch out a week and perhaps some drinks with friends. In other words, it provided him with a means of being able to do more than simply exist on the bare pension.

30   It is clear that he has only been existing. He simply cannot afford to do these things and, in the circumstances in which he now finds himself, namely, almost blind and with a life-shortening illness, the ability to do these simple things, which are normally taken for granted by most people, is a real need. One has to look at it in the context of the overall claims, and I will come back to that, but certainly, in my view, there should be a substantial increase in his income.

31   The way in which it has been calculated, which has been set out above, does allow for a discount of twenty percent, sufficient for the chances of him not living for that period of ten years. The computer equipment has been costed by the Royal Blind Society. Admittedly, he has a computer which is some two years old, but they do not last forever and it will not be long before he will have need for more. Computers are important for him. They are an important means of communication and he should have the ability to keep that communication, if not this year, next year.

32   The items on the Guide Dogs Association list are a number of devices which assist visually impaired people. One of the most expensive is a CCTV which allows a book to be blown up and projected on a screen on a television and then read. It is apparent from the evidence that has been given that such a piece of equipment can still be used by the plaintiff and it would be of great benefit to him.

33   There is evidence that the furniture is old, and I would have thought that the claims that are made are fairly modest. The reference to the capital sum is one where something ought to be granted, but I do not think in the amount which is there set out. The plaintiff has a limited life expectancy, but one also might find that there may be some things that might help him in the future, if his illness again progresses, that he could be assisted by having some funds in reserve.

34   So far as the dental work is concerned, there seems to be evidence of a range of options to do work to his teeth. They vary from $4,000 up to $40,000. Some level of dental work obviously is necessary because he is suffering from those problems.

35   The matter is one where one has the claim of a son who is in a difficult situation, and also a claim of neighbours who have been good to the deceased and her husband for some years. Although that good work obviously should be recompensed, I would have thought that provision of the whole of the estate to them is quite wrong. It totally disregards the obligation which the deceased had to provide for a son, which I have tried to explain.

36   In order that the plaintiff receive a legacy of $200,000 out of the estate of the deceased, such sum to include the interim provision already made. I order that the plaintiff's costs on a party and party basis and the defendant's on an indemnity basis be paid out of the estate of the deceased.

37   I order that the exhibits be returned.

oOo

Last Modified: 11/23/2001