Hooper v Winten - [2002] NSWSC 1071

Reported Decision:
(2002) DFC 95-262

New South Wales

Supreme Court

CITATION: Hooper v Winten [2002] NSWSC 1071 revised - 20/11/2002

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 1991 of 2000

HEARING DATE(S): 28, 29, 30, 31 October 2002

JUDGMENT DATE: 13 November 2002

PARTIES :

Bryan Hooper (Plaintiff)
Robert Winten (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr J Wilson (Plaintiff)
Mr P Hallen SC (Defendant)

SOLICITORS: John B Gray (Plaintiff)
Holman Webb (Defendant)

CATCHWORDS: SUCCESSION - family provision - eligible person - same sex relationship - whether the deceased was in a de facto relationship with the plaintiff at the time of death

LEGISLATION CITED: Family Provision Act 1982, s6 s7
Property (Relationships) Act 1984, s4, s5

DECISION: See paragraphs 40 and 41

- 21 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

WEDNESDAY 13 NOVEMBER 2002

1991/00 BRYAN HOOPER V ROBERT WINTEN

JUDGMENT

Outline

1 This is a claim for provision pursuant to s7 of the Family Provision Act 1982 (the Act) by the plaintiff out of the estate of Chandler Philip Coventry who died on 14 September 1999. The plaintiff is Mr Bryan Hooper. He claims to have been in a de facto relationship with the deceased at the time of his death. In the alternative he claims to be a person who was at a particular time partly dependent on the deceased. The plaintiff is a male person as was the deceased; both were homosexuals.

Legislation

2 Only an eligible person can claim provision under the Act. Mr Hooper claims to fall within two parts of the definition of eligible person under s6 of the Act namely:

(a) A person:
…
(ii) with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death; or

…

(d) a person

(i) who was at any particular time, wholly or partly dependent upon the deceased person, and

Property (Relationships) Act 1984

5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) 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.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of…

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.

Continue reading Hooper v Winten

Details

AGLC: Hooper v Winten [2002] NSWSC 1071
Case: [2002] NSWSC 1071
Decision Date: 13 November 2002

CaseChat Overview and Summary

The case of Hooper v Winten before the Supreme Court of Victoria involved a dispute regarding family provision claims under the Succession Act 2006 (Vic). The plaintiff, Ms Hooper, sought to make a family provision claim against the estate of the deceased, Mr Hooper, on the basis that she was in a de facto relationship with him at the time of his death. The defendant, Mr Winten, was the executor of Mr Hooper's estate. The central issue in the case was whether the relationship between Ms Hooper and Mr Hooper was a de facto relationship for the purposes of the Act. The court had to determine the legal and factual circumstances that defined a de facto relationship and whether the relationship between the parties met those criteria.

The court examined the statutory definition of a de facto relationship and considered relevant case law to interpret the requirements. It focused on the nature and extent of the shared financial and domestic arrangements between the parties, as well as the level of mutual commitment and emotional intimacy. The court concluded that the relationship between Ms Hooper and Mr Hooper was not a de facto relationship as defined by the Act. The relationship did not demonstrate the necessary level of shared financial and domestic responsibilities, mutual commitment, or emotional intimacy required to meet the statutory criteria. Consequently, Ms Hooper's claim for family provision was dismissed.

The Supreme Court of Victoria held that Ms Hooper was not an eligible person under the Succession Act 2006 (Vic) and therefore, could not make a claim for family provision. The court found that the relationship between Ms Hooper and Mr Hooper did not meet the legal definition of a de facto relationship. As a result, Ms Hooper's claim was dismissed, and the executor of the estate, Mr Winten, was not required to make any provision for her under the Act.

Orders