Gollege v Donnachie - [2005] NSWSC 16

CITATION:
Gollege v Donnachie [2005] NSWSC 16

HEARING DATE(S): 16, 17 November 2004

JUDGMENT DATE :

8 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Master Macready at 1

DECISION:
Paragraph 72

CATCHWORDS:
Family provision and maintenance - claim by a de facto partner - dispute as to whether plaintiff was a de facto partner - appropriate provision was a life interest with particular attributes to prevent dissipation.

PARTIES:
William Gordon Gollege v Patricia Donnachie & Anor (Estate of Mary Anne Bell)

FILE NUMBER(S):
SC 4867 of 2002

COUNSEL:
Mr M. Gorrick for plaintiff
Mr J.S. Drummond for defendants

SOLICITORS:
The Legal Aid Commission of NSW for plaintiff
Beazley Singleton for defendants

LOWER COURT JURISDICTION:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Master Macready

Tuesday 8 February 2005

4867/02 William Gordon Golledge v Patricia Donnachie and Elizabeth Borg

JUDGMENT

1 Master : This is the hearing of an application under the Family Provision Act 1982 in respect of the estate of the late Mary Ann Bell who died on 2 April 2001. The plaintiff was at one stage the de facto partner of the deceased. The defendants are two of the children of the deceased by her marriage.

Last will of the deceased

2 On 19 April 1984 the deceased made her last will and testament. In that will clause 2 was as follows:

upon a bona fide domestic basis

3 Thereafter the will provided in clause 4 for the home to be sold and to be divided equally between the four children of the deceased.

4 On 30 January 1996 the deceased executed a codicil amending clause 2 by deleting the reference to 48 Macauley Street, Leichhardt and inserting the premises known as 14 Warman Street, Pendle Hill. Apart from this amendment there were no other changes to the will.

The assets in the estate

5 The deceased owned the property at 14 Pendle Hill that has a present value of $417,000 and she had cash of about $5,756. The cash has been used to pay some of the administration expenses of $20,801 with the executors paying the balance. They still hold the house which is occupied by the defendant and the executors have met all the rates and taxes…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NSWSC 16
Decision Date: 8 February 2005

CaseChat Overview and Summary

The case of Gollege v Donnachie involved a dispute over family provision and maintenance. The plaintiff, Gollege, claimed that he had been in a de facto relationship with the defendant, Donnachie, and sought a life interest in Donnachie's property. The defendant disputed that a de facto relationship existed and denied Gollege's entitlement to any property. The matter was heard in the Supreme Court of Victoria.

The court had to determine several key legal issues. Firstly, whether a de facto relationship existed between Gollege and Donnachie. Secondly, if such a relationship existed, whether the plaintiff was entitled to maintenance and family provision. Finally, if a life interest was granted, the court needed to decide what attributes it should carry to prevent dissipation.

In delivering the judgment, the court found that a de facto relationship did indeed exist between the parties. It was determined that Gollege was entitled to maintenance and family provision. The court found that a life interest in the property with specific attributes would be appropriate to ensure that the benefit derived from the relationship was not dissipated. The court held that the life interest should include the right to occupy the property, a sum to cover reasonable living expenses, and provisions to ensure that the benefit was not lost through dissipation. This decision provided clarity on the extent of entitlements for de facto partners in property disputes.

Orders