Hibbins v Ingram

[1999] NSWSC 1011

CITATION:	Hibbins v Ingram [1999] NSWSC 1011
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	3613/97
HEARING DATE(S):	27, 28 September 1999
JUDGMENT DATE:	6 October 1999
PARTIES :	Ian Ross Hibbins (P) Margaret Elaine Ingram (D)
JUDGMENT OF:	Acting Master Berecry

COUNSEL :	(P) D C Tonge (D) J F Kildea
SOLICITORS:	(P) Robert James Tinsey (D) Snedden Hall & Gallop
CATCHWORDS:	Constructive Trust- No evidence of common intention; Homosexual relationship - Nature of dependency- Factors terminating relationship.
ACTS CITED:	Family Provision Act, ss 6(1)(d), 7, 9(1) and (3)
CASES CITED:	Baumgartner v Baumgartner (1987) 164 CLR 137, 148 Ball v Newey (1988) 13 NSWLR 489 Benny v Jones (Young J 13 February 1990) Benny v Jones (1991) 23 NSWLR 559 Re Fulop (1987) 9 NSWLR 679, 681 Howard v Andrews (Master Macready 31 July 1998) Kauri Timber Company (Tasmania) Pty Ltd v Reeman (1973) 128 CLR 177, 188-9 Mackenzie v Baddeley (Court of Appeal 3 December 1991) Maloney v Goodwin (Needham J 1 August 1989) Markulin v Drew (1993) DFC 95-140 Munro v Lake (McLelland J 8 February 1991) Petrohilas v Hunter (1991) 25 NSWLR 343, 346
DECISION:	See para 59

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ACTING MASTER BERECRY

Wednesday 6 October 1999

3613/97 - HIBBINS v INGRAM; ESTATE OF FRANCIS McKINNON WERNER DECEASED

JUDGMENT

1 ACTING MASTER: The plaintiff commenced proceedings on 14 August 1997 for an order that a constructive trust be imposed on the interest of the defendant as administratrix of the estate of the late Francis McKinnon Werner in respect of the property known as Lot 1 McAlister Road, Galston in favour of the plaintiff as to 12% of the interest of the defendant. Alternatively, a declaration that she holds an interest to the extent of 12% subject to a constructive trust in favour of the plaintiff, and thirdly, a declaration that the plaintiff is entitled to an equitable lien over the property to secure payment to the plaintiff of an amount equivalent to 12% of the interest of the defendant in the property. Further, that provision be made out of the estate of the deceased pursuant to s 7 of the Family Provision Act for the maintenance, education and advancement in life of the plaintiff.

2    The deceased was born on 25 December 1943. The plaintiff was born on 30 September 1962. They met each other in 1987 and by about March of 1988 the plaintiff moved into the deceased’s home at 7 McAlister Road, Galston and commenced to cohabitate in a homosexual relationship. The parties continued to reside at that property and live in a homosexual relationship until 1994.

3    In June of that year, the plaintiff went on a holiday to Queensland and remained there until 26 November 1994. During October the deceased travelled to Cairns and spent 12 days with the plaintiff touring Cairns and the surrounding districts.

4    The plaintiff returned to the deceased’s property on 26 November 1994 and continued to live with him until September 1995. In July 1995 the plaintiff had reconstructive knee surgery. After the operation, during the recuperation period, the plaintiff became frustrated and depressed with his lack of recovery. He says that the deceased encouraged him to return to Queensland to enable the recuperation period to continue in a better environment.

5    The plaintiff moved to Cairns in September 1995. Most of his personal effects remained at the Galston property. The parties kept some contact with one another during this period and it was planned that the deceased would join the plaintiff on 17 November 1995. At about this time the deceased was planning to retire. According to the plaintiff’s evidence the deceased’s intention was that he would move to Queensland and resume cohabitation with the plaintiff.

6    This did not happen. The deceased later informed the plaintiff he was unable to go to Queensland at that particular time because he had developed shingles on his chest and because of the death of a favourite dog he was too upset to travel. The deceased never made it to Queensland. On 17 February 1996 he had a telephone conversation with the plaintiff in which he informed the plaintiff that he had been diagnosed as having AIDS.

7    Subsequently some time between 17 and 18 February the deceased took his life. The plaintiff’s evidence is that on being informed by a neighbour of the deceased of his death, he returned to Sydney and to the Galston house and stayed there until the funeral. Subsequently he returned to Cairns.

8    The plaintiff’s evidence is that during 1987, he sold his interests in a property at Burragorang and applied the proceeds of sale and his savings towards the cost of the construction of the in-ground pool on the deceased’s land. It is on the basis of the contribution made by the plaintiff towards the construction of the pool that the first three orders are sought in the summons.

9    The plaintiff’s evidence is that by using his funds to build the in-ground pool, the value of the property was enhanced. He suggests that it was the intention that he have an interest in the property as a result of this contribution. However, there is no evidence that the plaintiff made any contribution of a financial nature towards the construction of the pool. Other than the statement in his affidavit that his funds were put to that purpose, there is no evidence corroborating that the moneys were spent on the construction.

10    The defendant requested the plaintiff to produce evidence of any records which would establish that any moneys that he had were used towards the construction of the pool. The plaintiff was unable to produce any documents or statements. The plaintiff annexed to one of his affidavits a draft agreement which it was said was intended to reflect the intention of the deceased and the plaintiff. However, neither the plaintiff nor the deceased signed the document. It was conceded on behalf of the plaintiff that no document could be found which had the deceased’s signature on it.

11 The declaratory relief in relation to the equitable lien was not pressed at all. The constructive trust point was not vigorously pressed by the plaintiff. It was put no higher than it was something which should be taken into account when considering the Family Provision Act component of the summons.

12 In the absence of corroborating evidence I am not prepared to accept that whatever money the plaintiff had in 1987 it was used for the construction of the swimming pool on the deceased’s land. The evidence does not disclose a common intention on behalf of the deceased and the plaintiff. It is difficult to see, having regard to the facts, that there was a common intention which would be unconscionable for the estate to deny. In Baumgartner v Baumgartner (1987) 164 CLR 137 at 148, the Court rejected a view that a constructive trust will be imposed in accordance with idiosyncratic notions of what is just and fair. In the absence of any evidence of common intention, any order sought for a declaration of a constructive trust must fail.

13 The application under s 7 of the Family Provision Act is brought on the basis that the plaintiff is an eligible person within the meaning of s 6(1)(d). Section 6(1)(d) provides as follows:

“(d) A person:
(i) who was, at any particular time, wholly or partly
dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was,
at that particular time or at any other time, a member of the
household of which the deceased was a member.”

14    It was not seriously contested that a homosexual relationship existed between the deceased and the plaintiff. The defendant’s evidence was that the relationship commenced in about March 1987. There was some doubt as to whether the relationship commenced in March 1987 or March 1988. It appears that there were two typographical errors in the plaintiff’s affidavit of 21 November. Only one of those errors had been corrected in the subsequent affidavit. However, Guy Spagnolo’s evidence in his affidavit was that the plaintiff and the deceased commenced living together in 1988. Because it is unclear when the relationship started I accept Mr Spagnolo’s evidence (affidavit of 12 April 1999) in preference to the plaintiff’s.

15    The plaintiff’s evidence was that he and the deceased had a warm and loving relationship which involved from time to time differences of opinion but was basically a committed one to one relationship. It was also a sexual relationship. There is evidence that they spent their leisure time together and at least initially, they had a common interest in showing pedigree dogs.

16    Evidence by G Spagnolo sworn on 12 April 1999 is to the effect that the plaintiff and the deceased commenced to live at the deceased’s house as a homosexual couple. Mr Spagnolo’s evidence corroborated the interest that the plaintiff and the deceased had in dog breeding and showing. He also corroborated the plaintiff’s evidence that most of their leisure time was spent together.

17    In cross-examination, the defendant did not really deny the homosexual relationship between the deceased, her brother, and the plaintiff. She admitted that the brother was a very private person. In her evidence she stated that even one week before his death he didn’t tell her that he had contracted AIDS.

18    In Benny v Jones (Young J - 13 February 1990, unreported) his Honour said that three things needed to be considered where there was a homosexual relationship. First, whether the plaintiff was wholly or partly dependent on the deceased. Secondly, whether the two men were of the same household, and thirdly, other factors warranting.

19    (1) Whether the plaintiff was wholly or partly dependent on the deceased.

20    The plaintiff’s evidence was that from the time he commenced cohabitation and throughout the relationship he paid no rent or board and the deceased paid most of the cost of food and household expenses. The plaintiff met his own personal expenses and otherwise contributed as he was able. Both he and the deceased shared the household tasks, although according to the plaintiff, most of those tasks were performed by him.

21    During the relationship the deceased remained in full-time employment and the plaintiff worked casually about three days a week. This was a work pattern that had existed prior to the plaintiff entering into the relationship with the deceased. His evidence was that for some time prior to his relationship with the deceased he had worked about three days per week. During their relationship the plaintiff conceded that the deceased provided most of the funds. He paid all household accounts, food bills, expenses relating to the property, car and travel expenses including registration costs. He also paid the legal fees in relation to a charge concerning a drug offence in which the plaintiff was not convicted. In return, the plaintiff did most of the household cleaning, washing, looking after the in-ground pool, household maintenance, gardening and general handyman jobs and cared for the dogs in the deceased’s absence.

22    G Spagnolo’s evidence, in his affidavit of 12 April 1999, was that the deceased had often complained about the plaintiff never paying board or rent and not being able to contribute to pay all the bills of the household. However, from Mr Spagnolo’s observations, the plaintiff did work around the house, such things as building a fence and the swimming pool and deck. In relation to the swimming pool, I accept that as being no more than assisting with work around the pool.

23 In cross-examination, the plaintiff agreed that his pre-relationship work habits continued into the relationship. He conceded that the money that he earned was by and large spent on himself. He stated that the deceased supported him. In Benny v Jones (1991) 23 NSWLR 559, the Court of Appeal adopted what was said in Ball v Newey (1988) 13 NSWLR 489. Dependency must have a financial element. Given both the financial type of dependency and the sexual relationship, the extent of the moral obligation to make provision could well be affected by the nature of the sexual relationship. In Mackenzie v Baddeley (Court of Appeal - 3 December 1991, unreported) it was said the phrase “partly dependent” doesn’t mean substantially, it suggests more than minimally or significantly.

24 In Petrohilas v Hunter (1991) 25 NSWLR 343 at 346, the Court said, “The dependence (financial) flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.” In Kauri Timber Company (Tasmania) Pty Ltd v Reeman (1973) 128 CLR 177 at 188-189, “one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from other sources.” In Howard v Andrews (Master Macready - 31 July 1998, unreported) at p 11, the Master said, “It is not to the point that each of them might have been able to live their own separate lives. It is more a matter of how they chose to live their lives and in the present case there was clearly an emotional and a part economic dependence by the plaintiff on the deceased.”

25    On the evidence, in my view, it is clear that there was a dependence by the plaintiff on the deceased. That the plaintiff’s work habits had not changed since he commenced the relationship with the deceased in my view doesn’t take the matter very far. True it is that those work patterns which existed prior to the relationship appeared to be sufficient to enable the plaintiff to live and meet his commitments and in fact it would seem that the work pattern hasn’t changed up to the time of making the application. Nevertheless in my view there was a dependency on the deceased. That dependency was in part financial through the provision of food and accommodation. It was in part emotional. Evidence has been put on which has not been contradicted by the defendant that there was a commitment to each other. I am therefore satisfied that the plaintiff was partly dependent on the deceased.

26    (2) The Court must determine whether the two men were of the same household.

27 In Maloney v Goodwin (Needham, J - 1 August 1989, unreported) his Honour said that before one can have a household one had to have a quasi family unit. In Munro v Lake (McLelland, J - 8 February 1991, unreported) his Honour said the concept of membership of a household connotes a degree of continuity and permanency of mutual living arrangements. In Markulin v Drew (1993) DFC 95-140, Young J said, “For the purpose of the Family Provision Act provided there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child ... When I use the words ‘intimate connection’ I do not limit that to persons with whom there is a sexual relationship. The bond between them however, must be quasi familial or that of friendship rather than that of landlord and boarder.”

28    The plaintiff’s evidence is that they conducted their affairs in such a manner they can be regarded as a couple. The deceased provided most of the money to the relationship. Each shared the household chores although the plaintiff’s evidence was that he performed the majority of that work. He gave evidence that he did most of the cleaning, the washing, looking after the in-ground pool, household maintenance, gardening, handyman jobs and cared for the deceased's dogs in his absence. They lived in this condition for a period of approximately seven years. They were known to friends as companions and lovers and there were mutual friends who were aware of their relationship.

29    There was in their relationship continuity and permanency of living arrangements. There was that intimate connection referred to by Young J in Markulin v Drew (supra). In my view both men were of the same household.

30    (3) Other Factors.

31    Section 9 of the Act differentiates between eligible persons in paragraphs (c) and (d) of the definition of eligible person and those defined in paragraphs (a) and (b). The section makes the following provision:

“(1) Where an application is made for an order under s 7 by an eligible person who was such a person by reason only of paragraph (c) or (d) of the definition of ‘eligible person’ in s 6(1), the court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of an application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.”

32 The test to be applied is that stated by McLelland J in Re Fulop (1987) 9 NSWLR 679 at 681, “The ‘factors’ referred to... are factors which when added to facts which render the applicant a ‘eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testatmentary recognition by the deceased.”

33    The factors warranting making the application include the nature of the relationship, the length of the relationship, the conduct of the parties in a relationship towards each other.

34    Between March 1988 and June 1994 the evidence is that this was a close and warm relationship. The parties had mutual friends, they had a common interest at least initially. They worked together in various capacities in that relationship. The deceased was the primary bread winner. The plaintiff the primary house-carer. This period was as period of some six years. In June 1994 the plaintiff went to Queensland where he stayed until the end of November of that year. His evidence was that he needed a break. It is unclear from his evidence whether the need for that break was because of any problem with the relationship or because of some other factor. Nevertheless, in October of that year the deceased joined him in Queensland for a holiday for 12 days. Subsequently, at the end of November the plaintiff returned to the Galston property and the parties continued their relationship until September 1995.

35    There is evidence that in July 1995 the plaintiff had an operation. As a result of that operation he became depressed and the deceased recommended that he return to Queensland to recuperate. This he did. The intention was, according to the plaintiff, that on retirement the deceased would join him sometime in November 1995 and they would continue to live in Cairns. It seems to me on the evidence it is difficult to say that the relationship lasted beyond September 1995. With one partner living 3000 km from the other it is difficult to see how that constitutes being of the same household and partial dependency on the deceased.

36    Once the plaintiff had resumed cohabitation with the deceased in November 1994, the nature and quality of the relationship must be put into question. There appears to have been nothing unremarkable in the relationship up until July 1995. However, the plaintiff spent some time recuperating at his father’s property, not with the deceased. There is no evidence of what assistance the deceased gave to the plaintiff once the plaintiff resumed living at the Galston property. It seems rather strange that the two people to be in a deep and committed relationship for one to suggest to the other that he goes away to enable him to recuperate. It also doesn’t suggest that the relationship had any future when the deceased took no steps to resume the relationship in November 1995. The reasons given by the deceased for not moving to Cairns were that his favourite dog had died and that he had shingles. However, it may well be that by November the deceased was aware that he was ill.

37    Mr Spagnolo, in his evidence, noted that in November 1995 the deceased did not look well and had been losing weight. It may well be that if he was aware of his illness, he did not want to resume the relationship. Certainly that is an inference that one can draw from the Christmas card sent in 1995. The endorsement by the deceased on the Christmas card was not in loving terms; it was more in the nature of friendship. There is no commitment or strong emotional attachment in the phrasing of the note. However, by that stage the deceased may have been aware that he had contracted AIDS. The difficulty is that there is no evidence on this and it is mere speculation. The facts, however, are that the deceased did not move to Cairns, he did not renew the relationship and he did not tell the plaintiff that he had contracted AIDS until the day of his death. Therefore, in my view the evidence suggests that the relationship had ended by September 1995.

38    However, in considering whether there are any factors warranting the making of the application one needs to consider the quality of the relationship over the six and a half years that they were together.

39    In my view, because of the length of the relationship and because of the commitment to one another during that period in time, there are factors warranting which would lead one to regard the plaintiff as a natural object of testamentary recognition by the deceased.

40    The next question is whether or not there had been adequate provision made in favour of the plaintiff by the deceased either during his lifetime or out of his estate because no provision was made by the deceased who died without making a will. His estate under the intestacy provisions goes to his sister. It is clear then that no adequate provision was made for the proper maintenance, education and advancement in life of the plaintiff.

41    Section 9 sub-section (3) requires the Court to take into consideration a number of matters. Contributions of a financial and non-financial nature made by the eligible person; in this case there is evidence that the plaintiff provided services in relation to the conservation and improvement of the deceased’s property. There is some evidence which suggests that some of the work performed by the plaintiff was faulty. Agricultural pipes were laid too close to the surface of the soil and tiles were put on walls in a manner which was substandard workmanship. However, the plaintiff’s evidence is that he performed tasks around the property and there has been no evidence or no contradiction of the plaintiff’s evidence except to a minor degree that what he did was not of benefit to the deceased.

42    There is evidence concerning his contribution as a homemaker. That evidence was largely unchallenged and I accept the plaintiff’s evidence in that respect.

43    There was no evidence of conduct disentitling during the relevant period. The plaintiff and the deceased appeared to have a loving and warm relationship where there was shared leisure time and shared interests.

44    The plaintiff is currently a bar attendant at the Reef Hotel Casino in Cairns. His net weekly wage is $362.20. His most recent affidavit, that is, the affidavit of 24 September 1999, gives no details of his weekly expenses. His affidavit of 21 November 1997 sets out at paragraph 27 his weekly expenses. They total $274. In that affidavit his weekly earnings, after tax, were $343. In the absence of any updating information, I will assume that his currently weekly expenses are in the vicinity of $275. He has an excess of income over expenditure of $88 a week. The plaintiff is still not working a five day week. There is therefore potential to increase his income, although not necessarily increase his expenditure.

45    In the most recent affidavit his assets are valued at just under $17,000. Amongst those assets is a 1987 Magna motor sedan given by the deceased to the plaintiff. The value attributed to the motor vehicle was $1,000.

46    The plaintiff’s evidence, in relation to his needs is not very detailed. In his earlier affidavit there is no mention of any specific need. In his most recent affidavit he states that he desires to return to Sydney to live which will please his father and allow him to be with his friends. He also wants to find a position in Sydney in the hospitality industry and he feels that by coming to Sydney he has better prospects of promotion and has a career path. His needs, according to his evidence, relate to the move to Sydney and therefore accommodation. His evidence is that he would like to purchase a unit in the inner city area. There is some evidence put on in relation to the price of units in the Paddington/Chippendale area. Those units range from $159,000 to $199,000. Some of his evidence in cross-examination was a little contradictory of his desire to live in the inner city area. When questioned about his father, he said he would like accommodation in Sydney near his father. His father lives at Mona Vale. I would not regard Paddington or Chippendale as being close to Mona Vale.

COMPETING NEEDS

47 It is, of course, necessary to look at any competing needs when determining what provision should be made out of the estate. The estate has a net value of approximately $285,000. The deceased died intestate. His sister is therefore the only person who is entitled to the assets of the estate subject to an application under the Family Provision Act.

48    The deceased’s sister is the defendant in these proceedings. On 6 November of this year, she will be 59. She is currently working for George Weston Foods Ltd six days a week and earning $451.19 net per week. Her expenses are approximately $465 per week. There is, therefore, on her evidence, a shortfall of some $14. She owns a unit in Queanbeyan which is valued at $88,000 but subject to a mortgage of $33,000. She has assets of approximately $123,000 and liabilities of approximately $47,000 giving her net assets of approximately $76,000.

49    She sustained an injury at work in 1988 and as a result of that injury, still suffers pain to her back and legs and has to take pain killers from time to time. There is no evidence that any claim has been made on her behalf in relation to the work related accident. At 59, she has a limited working life. She still has a mortgage of $33,000 on her unit. Her evidence is that the unit is small and doesn’t enable her to have her grandchildren stay with her. A provision from her brother’s estate would enable her to buy a house in Queanbeyan in the range of $146,000 to $167,000. The acquisition of such a property would enable her to have her grandchildren with her from time to time.

50    A concern must be the mortgage on the unit. Relying on her own resources it would seem that it will be very difficult for her to pay out the mortgage. Some time in the foreseeable future she will be either working a reduced number of days, she hopes five days per week, or she will have retired. At that age she would find it very hard to find other employment. The future for the defendant then is that her income would reduce the ability to fund the mortgage therefore must be questionable.

51 The deceased has not made any provision for the plaintiff. The deceased did not leave a will. The estate has sufficient assets for provision to be made for the plaintiff. The plaintiff is an eligible person and in my view, satisfies the requirements of s 9(1) and (3). The question is what provision ought to be made from the estate of the deceased for the plaintiff?

52 As I have already said, I believe that between 1988 and 1994 the deceased and the plaintiff had a relationship which could be described as warm, loving and close. However, from July 1995 that appears to have changed. Certainly from September 1995 onwards it could not be said that the plaintiff was a part of the household of the deceased, nor could it be said that the plaintiff was wholly or partly dependent on the deceased. The requirements of s 6(1)(d) therefore from September 1995 are absent.

53    On the evidence, on the balance of probabilities, it is difficult to say that the relationship would have recommenced. Had the relationship still been a strong, caring and loving relationship, it is difficult to see why the deceased suggested to the plaintiff that his recuperation take place 3000 km away. Likewise, if the deceased still felt strongly about the plaintiff, it is difficult to understand why he didn’t confide in the plaintiff about contracting AIDS.

54    In my view it would appear that the relationship was over. At the time the deceased died, it could not be said that there was a loving and caring relationship. That appeared to have ended some months beforehand. I am not satisfied, on the plaintiff’s evidence, that notwithstanding the deceased had contracted AIDS that he had any intention of living permanently in North Queensland with the plaintiff. Therefore, in that context, any provision that should be made for the plaintiff has to be considered with those matters in mind. Although the relationship was a loving and caring relationship, it lasted only approximately six years.

55    The evidence of the defendant was that she was close to her brother. They were in regular contact and they saw each other from time to time. However, it transpired that they saw each other perhaps no more than once or twice a year and the evidence about their telephone contact was fairly inconclusive. Nevertheless, it must be borne in mind that she had her family in Queanbeyan and he had his life in Sydney. There was nothing in the evidence which suggested that there was any animosity between brother and sister. Their relationship was no different than that of many other Australians. They lived in different cities; they had different interests, although they did share interest in the dogs. She had a family. His involvement outside of his dogs was in an area completely different to that of his sister. Therefore, nothing suggests that their relationship was out of the ordinary.

56    The legislation makes provision based on relationships to the deceased under the intestacy provisions. The closest relationship is that of surviving spouse followed by children and siblings of the full blood. The defendant was the closest relative to the deceased. That needs to be borne in mind when considering what provision should be made for the plaintiff.

PLAINTIFF’S NEEDS

57    The plaintiff’s relationship with the deceased was loving and caring which lasted for approximately six years and that could not be regarded as a long relationship. It is in that context that provision for the plaintiff is made. His evidence as to his needs is not given with any conviction. After four years he now decides Sydney is where he should be. Part of the reason is given he wants to further his career in the hospitality industry, part of the reason is to be close to his father, and another reason is that he wants to return to Sydney because most of his friends live in Sydney. In his affidavit he states that he would like to purchase a unit in the inner city area. In cross-examination his evidence was that he would like to be near his father. It is not really clear what the plaintiff wants. It is certainly not clear what the plaintiff’s needs are. A number of the matters he has raised seem to me to be things that have been considered in haste and are probably no more than wants or desires, rather than needs.

58    The relationship was not so enduring that the estate should provide the plaintiff with accommodation. In my view, the estate should make provision to some degree for the plaintiff’s proper maintenance, education and advancement in life. He has not made any attempt to move to Sydney and it is doubtful whether that will in fact happen. His income exceeds his expenditure by approximately $88 a week. He is not working full-time. It seems to me that he has the capacity to earn more money, but in earning more money it doesn’t necessarily follow that his expenses will greatly increase. Should he desire to come to Sydney to improve his prospects he will obviously need some form of accommodation. He is a person who whilst never having been in full-time employment, has never been unemployed either. He is still relatively young. Were he to come to Sydney I do not think he is likely to have trouble finding employment. If he can find employment in his chosen occupation his career path may expand. Provision should be made from the estate to give the plaintiff the opportunity to purchase some form of accommodation. In my view, an appropriate amount for the plaintiff would be $55,000.

ORDER

59    Therefore, the order that I make is that the plaintiff receive a legacy from the estate of the deceased in the sum of $55,000. The estate pay the plaintiff’s costs on a party and party basis; the estate pay the defendant’s costs on an indemnity basis.

60    After the reasons for the decision were drafted I received a letter from Snedden Hall & Gallop dated 30 September 1999. I read the letter but its contents did not have a bearing on my decision.

*******************


I certify that paragraphs 1 - 60 are a true copy
of the reasons for judgment herein of Acting
Master Berecry.

Associate

Date :

Last Modified: 10/06/1999