Jurd v Public Trustee

[2001] NSWSC 632

CITATION:	Jurd v Public Trustee [2001] NSWSC 632
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4423 of 1999
HEARING DATE(S):	10th and 11th July 2001
JUDGMENT DATE:	11 July 2001
PARTIES :	Robert John Jurd v Public Trustee
JUDGMENT OF:	Master Macready at 1

COUNSEL :	M. Willmott for plaintiff L. Ellison for defendant
SOLICITORS:	Eric Butler for the plaintiff Harris Wheeler for the defendant
CATCHWORDS:	Family Provision. Application by a person who was living in a domestic relationship with the deceased. Discussion on the meaning of the expression "close personal relationship". - Held that the Family Provisions Act 1984, as amended by Property (Relationships) Amendment Act 1999, applies to estate of a testator dying before 28 June 1999 provided proceedings were commenced after that date.
DECISION:	Paragaph 54

- 1 -

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Clifton John Mills who died on 30 March 1999. The deceased died intestate and letters of administration were granted to the defendant on 17 June 1999.

2   The deceased had no close family such as children and the persons who may take on intestacy are two aunts. They are Gertrude Adeline Harriet Steel, a full blood sister of the deceased's mother, and Sarah Alma Hope Platts, who is a sister of the deceased's father. Mrs Steel has recently died and there is no information before the court as to who takes under her estate. There is a doubt as to whether Mrs Platts is an aunt of the full blood; she may only be an aunt of the half blood. There may be a need for there to be a next of kin inquiry to determine her status. Because of the size of the estate, these matters do not cause any difficulty in determining this application.

3   The estate consists of two properties, one at New Lambton and one at 18 Crowdace Street, Wallsend. The net value of the estate is in the order of $396,535.

4   The deceased, who had no children of his own, was in the habit of taking in various teenagers into his home and providing them with a roof over their head for a period of time. The plaintiff was one of such persons. He lived in the property from 1996 and is still living there. For the first eighteen months he lived in a caravan in the back yard which drew its power from the house. He used the facilities in the house such as showers and toilets. After eighteen months he moved into the house itself.

5   The plaintiff claims to be an eligible person on two bases:

(a) Section 6(d) as a person who was partly dependent upon the deceased person and who was a member of the household of which the deceased person was a member;
(b) Section 6(a)(ii) as a person with whom the deceased person was living in a domestic relationship at the time of the deceased's death.

6   The latter arises out of the amendments to the Act by the Property (Relationships) Legislation Amendment Act 1999.

7   There has been argument as to whether the amendments apply to an estate where the deceased died before the commencement of the amendments on 28 June 1999. Section 37 of the Act as amended deals with transitional provisions and provides for Schedule 1 to have effect.

8   Schedule 1 is in these terms:

" Schedule 1 Savings and Transitional Provisions (Section 37)

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any of the following Acts: Property (Relationships) Legislation Amendment Act 1999.

(2) A provision referred to in subclause (1) may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3) To the extent to which a provision referred to in subclause (1) takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done, or omitted to be done, before the date of its publication.


2 Estates the subject of proceedings

The amendments made to this Act by the Property (Relationships) Legislation Amendment Act 1999 have no effect in relation to an estate in respect of which proceedings under this Act had commenced before those amendments took effect, and any such proceedings are to be dealt with and determined as if those amendments had not been made."

9   There are no regulations that have been made pursuant to the Act to date.

10   An argument was advanced that the amendments do not have retrospective operation because of the usual presumption against retrospectivity. Particular reference was made to the classic statement of Dixon CJ in Maxwell v Murphy (1957) 96 CLR 261 where he said at 267 the following:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done.' (1876) 3 Ch D at 69.

The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application. In some cases they have been due to the discovery in the nature or context of the legislation or in its subject matter of indications, whether faint and conjectural or strong and persuasive, of a desire to cover situations already existing. In other cases the difficulty has been traceable to the inveterate tendency of English law to regard some matters as evidentiary or procedural which in reality must operate to impair or destroy rights in substance. Again, enactments in truth conferring or denying rights are not seldom expressed in terms of remedy. There is a tacit recognition of this in the manner in which Lord Penzance (then Wilde B) states the rule in a passage that has been much quoted:

'The rule applicable to cases of this sort is that, when a new enactment deals with rights of action, unless it is so expressed in the Act, an existing right of action is not taken away. But where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions whether commenced before or after the passing of the Act.' - Wright v Hale (1860) 6 H & N 227 at 232.

The rule or rules governing the presumption against the operation of new laws upon rights that have already accrued or immunities that have already been established or acquired must be reconciled or accommodated with the rule that the repeal of a provision makes it as if it had never been enacted. It is to this that the exceptions, already described, of the former rule are directed. In the case [of] Butcher v Henderson (1868) LR 3 QB 335, this is clearly put by Blackburn J as follows: 'The maxim alike of law and justice is, "Nova constitutio futuris formam imponere debet, non praeteritis", and therefore, though when a statute is repealed, it is as to new matters as though it had never existed, yet as to transactions already completed under it, it still has full effect': (1868) LR 3 QB at 338."

11   Also of importance in my view are two other statements as to the distinction between legislation having a prior effect on past events and legislation basing future action on past events:

"In Coleman v Shell Company of Australia Limited (1943) 45 SR (NSW) 27 at 31, he said - '...as regards any matter or transaction, if events have occurred prior to the passing of the Act which have brought into existence particular rights or liabilities in respect of that matter or transaction, it would be giving a retrospective operation to the Act to treat it as intended to alter those rights or liabilities, but it would not be giving it a retrospective operation to treat it as governing the future operation of the matter or transaction as regards the creation of further particular rights or liabilities.'
In Robertson v City of Nunawading [1973] VR 819 at 824, the Full Court of the Supreme Court of Victoria said - '...[the] principle is not concerned with the case where the enactment under consideration merely takes account of antecedent facts and circumstances as a basis for what it prescribes for the future, and it does no more than that.'"

12   It is also useful to note the principles of construction which were summarised by Kirby P in Baker v Australian Asbestos Installation Pty Ltd (1985) 3 NSWLR 280 at 289:

"(1) A statute changing the law will not generally be construed so as to apply to facts that have already occurred or alter rights and liabilities already accrued unless the intention to do so appears 'with reasonable certainty': Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ at 267.

(2) Although the above presumption is rebuttable (see Worrall v Commercial Banking Company of Sydney Limited (1917) 24 CLR 28 at 32) it is less readily rebutted where the result would be to deprive a person of accrued rights.

(3) The deprivation of rights that have accrued may, in some circumstances, be justifiable by reference to considerations of aggregate justice, as for example where, although some rights are taken away, others are afforded: cf Isaacs J in George Hudson Limited v Australian Timber Workers Union (1923) 32 CLR 413 at 434. In determining the operation of transitional provisions, if they are obscure or uncertain in their application, regard may, as always, be had to the mischief to which the legislation is addressed. However, if the language of the legislation is plain, the duty of the court is to give effect to it.

(4) It is not readily to be inferred that the Parliament would enact otiose provisions. Attention must therefore be paid to the precise language of the whole of the legislation, where it is affected by amendments and transitional provisions, in the attempt to derive from it a construction which will permit the consistent operation of all provisions of the legislation."

13   The submissions of the defendant emphasised the rights of beneficiaries which accrue on the death of a testator and suggested that those rights were entitled to the protection of the presumption. One must give attention, however, to the precise language of the whole of the legislation and this, of course, includes the terms of s 2 of Schedule 1. That section seems to be drafted on the basis that the amendments are only procedural.

14   If the construction the defendant advocated was correct, there would be no purpose for the section as no proceedings can be commenced under the Family Provision Act before the death of the deceased. In other words, the section would be completely otiose.

15   The Family Provision Act allows certain classes of persons to make claims upon the estate of a deceased person. The Act prescribes the characteristics that those persons have to meet by reference to facts which occurred during the lifetime of the deceased. Any beneficiary’s interest is always subject to challenge by an action brought pursuant to the Act. To that extent a beneficiary does not have fixed rights. An amending Act changing those characteristics for future applications merely changes the class of persons who may challenge the beneficiary’s interest. This is a somewhat limited retrospective operation of the amendments. I would characterise the amendments as merely taking account of antecedent facts and circumstances as a basis for what it prescribes for the future.

16   In my view the Act as amended applies to estates of persons dying before the amendments, provided the application was made after 28 June 1999. This has occurred in the present case.

17   Master McLaughlin apparently has come to the same view in the case of Knuts v Sharah, 18 February 2000.

18   I have already referred to s 6(a)(ii). The Family Provision Act defines a domestic relationship by reference to the Property (Relationships) Act:

"The Property (Relationships) Act applies to domestic relationships which are defined in s 5 as follows:-

'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 sub-s (1)(b), 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 or 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).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:


(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long term welfare both parents have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by s 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this sub-section, was a party to such a relationship.'

19   It can be seen from the terms of s 5(1) that a domestic relationship can be either a de facto relationship or a close personal relationship.

20   The definition of de facto relationship itself appears in s 4 and is in the following terms:-

'4. De facto relationships.

(1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:


(a) who live together as a couple, and

(b) who are not married to one another or related by family.

(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.


(3) No finding in respect of any of the matters mentioned in sub-s (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(4) Except as provided by s 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this sub-section, was a party to such a relationship.'

21 This definition apart from the provisions of sub-cl (1) merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act. See Light v Anderson (1992) DFC 95120 applying Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677.

22   Apart from the exclusionary matters in s 5(2) there is no definition of 'close personal relationship'. Little help is obtained from the reading speeches as to the meaning of 'close personal relationship'. It is apparent from the terms of the separate definition of de facto relationship that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons 'who are living together, one or each of whom provides the other with domestic support and personal care'. It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient.

23   A 'close personal relationship' has to be between two adult persons who are 'living together'. Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a 'de facto relationship' concepts relating to a 'couple' are not relevant. Instead the definition calls for two different links. The first is that the parties are 'living together'. The second is that 'one or each of whom provides the other with domestic support and personal care'.

24   So far as the first requirement is concerned since we are not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

25   The second requirement is cumulative. There must be both domestic support and personal care.

26   It is the provision of 'personal care' which provides the clue to the meaning of the composite expression 'domestic support and personal care'. Some of the primary meanings of 'personal' include:-

(a) of or pertaining to concerning of affecting the individual person or self; individual; private; one's own.

(b) of or pertaining to one's person, body or figure; bodily.

27   Accordingly, personal care connotes care taken in connection with such matters. It could be provided by:-

(a) the person concerned,

(b) an employed valet or lady in waiting,

(c) a mother for her sick child, or

(d) a daughter for her elderly incapacitated mother.

28   The legislation in terms excludes the first two but would include the last two examples.

29   In the present case the plaintiff's evidence pointed to an association which commenced when the plaintiff was thirteen years old and continued for some twenty-four years until the death of the deceased. For the last three and a half years the plaintiff lived with the deceased. This came about because the plaintiff's de facto relationship had ended and the deceased asked him to come and live with him. The plaintiff also was not working at this stage and had not been for some time.

30   Paragraphs 18, 19 and 20 of the plaintiff's affidavit of 12 January 2000 are in the following terms:

"18. Matthew was a young lad who lived in the shack on John's Elermore Vale property some years ago. He was accidentally electrocuted about eight years ago on the property. John kept his ashes in his house. John had many discussions with me regarding what he wanted to happen with his property if he died. On occasions that I complained to him about sleeping while I did all the work around his house, he would say: 'I am retired and I do not want to have to work any more. It is your job to do the work. If you live here and help me with the work around the place then all my assets will be yours when I pass away'.

19. From this time I performed and undertook much work for John at his property. I did the cooking, cleaned the house, mowed the lawns, did the gardening, assisted John with the shopping and banking. I spent at least three hours each day with these chores. I also stayed with John most of each day and provided him with companionship.

20. In the last year of his life, I also looked after John. When I first went to live with him I saw that his diet almost solely consisted of deep fried or tinned food including fish fingers, Chiko rolls and braised steak. He was grossly overweight and spent a large part of each day eating lollies, potato chips and other junk food. I took over the cooking for John and prepared healthy meals including steamed fresh fish, fresh meat and fresh vegetables. I rarely went out so that I had no social life of my own. His health deteriorated. I assisted him each day bathing his feet, helping him put his shoes on, brushing his hair and cajoling him into taking a bath. He suffered from emphysema, sugar diabetes and obesity. A few days before he died he suffered a massive stroke. The nurse at the hospital where he was confined asked me to decide whether he should be kept on a 'life support' system. His doctor told me he was 'brain dead' and that keeping him on a life support system 'would be futile'."

31   On this evidence, if it is accepted, the plaintiff clearly was, in only the last year of the deceased's life, providing the deceased with domestic support and personal care. They were also living together in the terms of the legislation. The question is whether this evidence should be accepted.

32   There were many witnesses called by the defendant who spoke harshly of the relationship between the plaintiff and the deceased. It became perfectly apparent from this evidence that:

(1) the deceased wanted to get rid of the plaintiff from his house;
(2) the deceased was perhaps afraid of the plaintiff;
(3) the house and the yard was not kept clean and tidy by the plaintiff; and
(4) that the plaintiff simply treated the house as his own.

33   Although the deceased wanted to get rid of the plaintiff and spoke to his solicitor about it, he in fact did nothing about it.

34   As I have mentioned, the evidence was critical of the state of the house but it did not go to the extent of suggesting that the personal care and domestic support was not in fact provided.

35   There were two other witnesses called on behalf of the plaintiff to support his case. One was a Mr Gary Siddoway who knew the deceased from a time in August 1998. He described the deceased's health as deteriorating rapidly. He gave evidence of a conversation which he had with the deceased when he asked why the plaintiff was doing all the work around the house. The response from the deceased was:

"Because I am now retired and I don't have to do anything any more. Robert does all of the work and looks after me. That's the deal we made and he'll get everything I own when I go."

36   Mr Siddoway asked about the deceased's family and was told that he had a few aunts that he didn't have any time for, and made a few other comments. He said he had known Bob for twenty-odd years, that he had been living with him for the last four years and looking after him and taking care of him. He said, "He and his two sons are the only family I have. He will be getting everything I own when I go, so he can do the work then."

37   There was also evidence from a Mr Andrews. He was a friend of the plaintiff's and he met the deceased when he was about eighteen, and on occasion he visited the deceased's home. He gave evidence of two conversations, one in March 1997 when the deceased said to him that when he died "Robert will get the lot" of his estate, and also again in May 1998 to the same effect.

38   It seems that the deceased was in fact a person who had become very obese. He was suffering from diabetes and his physical health was deteriorating in the last year of his life. That fact of itself makes it likely that there might be the care provided by the plaintiff. The evidence that I have just referred to also provides strong support for the plaintiff's case.

39 Having regard to that evidence I think I can accept that part of the evidence of the plaintiff to which I have referred and quoted above, and in my view clearly he did provide domestic support and personal care when he and the deceased lived together. He is thus an eligible person and one is thus not concerned with factors warranting under s 9(1) of the Act.

40   There is, of course, an alternative basis that was put forward and that is that he was partly dependent upon the deceased and part of the household. Clearly he was dependent for accommodation and that is not really in dispute. I would have thought that he would be part of a household. Clearly enough the plaintiff had found himself in a fortunate situation where he had free board and lodging and he proceeded to treat the house more as his in the expectation that ultimately he would receive it one day. Given that he provided meals and cooked for the deceased, I would have thought it fair to describe it as a household. It is not as though the plaintiff was out working and living quite a separate life. He was at home apparently quite a lot of the time. He would thus be an eligible person but it is necessary for him to show factors warranting.

41 However, it is necessary under s 9(1) of the Family Provision Act that the court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms:

'Secondly, the sub-section appears to be premised upon a distinction between "factors which warrant the making of the application" on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the sub-section would be pointless. This means that in a particular case the court might determine that there are "factors which warrant the making of the application" within the meaning of the sub-section, and yet go on to decide that the application should fail. Since the sub-section applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills, Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the "factors" referred to in the sub-section are factors which when added to facts which render the applicant an "eligible person" give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the sub-section is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but "refuse to proceed with the determination of the application." '

42   In Churton v Christian (1988) 13 NSWLR 241, the court approved this statement. Priestley JA at p 252, after setting out and approving the statement, added:-

'To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition.'

43   These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

44   So far as whether those factors exist in the traditional sense, there are the promises that were made by the deceased and the fact of a relationship which extended for some period of years, and for at least four years, when the parties were living together. I would have thought that perhaps some small legacy might in those circumstances have been appropriate and in those circumstances I would have thought that there are factors warranting.

45   This brings me to a consideration of the claim generally. In Singer v Berghouse the High Court has recently set out the principles which have to be applied. The High Court 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 inter-relationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Ltd . 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 et cetera 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."

46   I turn to the plaintiff's situation. He is thirty-eight years of age and single. He has children but these do not appear to be dependent upon him for the time being. He exists on a disability pension of about $380 per fortnight. He has not worked for at least six years and last week he came out of gaol where he had spent the last two months. He was convicted of supplying heroin. Last year he had started to use heroin and had started to supply it. He says that he has not used since he has been in gaol and been released. He has no assets, little clothing and nothing to his name. His cars have all exploded or crashed.

47   In this case I know nothing of the situation of Mrs Steel or her estate and I can only thus assume that nothing is to be put forward to the court as to the financial circumstances of those beneficiaries. I do know of the situation of Mrs Platts who is ninety-two years of age. Her situation might be quite irrelevant if she is not entitled to the half share. Even if she was, it is clear that the plaintiff's claim can be accommodated within the half share of Mrs Platts.

48   This brings one to a consideration of the plaintiff's claim. Importantly the extent of the close relationship was only one for three and a quarter years. It is a fairly short period. Secondly, the plaintiff was provided with free accommodation for that period and for substantially the whole of the period since the date of the deceased's death apart from when the plaintiff was either in gaol or on bail.

49   The rental value of the house is in the order of up to about $120 per week. Other people apparently, when they came to the place, paid board, but not the plaintiff. He did meet his telephone account but that is all. The estate has paid all the rates and taxes on the property since the date of death, and incurred those expenses all to the benefit of the plaintiff.

50   Thirdly, in the lifetime of the deceased there were substantial provisions made by the deceased for the plaintiff. He gave him a boat worth $3,000, a four wheel drive Landcruiser worth $15,000, and there are also some other odd items with a total value of $1,000.

51   Another matter to be taken into account is the evidence of the defendant that demonstrates unhappiness on the deceased's part with having the plaintiff there, though probably the deceased may have needed him there. Perhaps that is why the deceased did not take the step of getting rid of him.

52   The other problem is that the plaintiff himself is in a fairly critical situation in terms of his future. He has had an unhappy past; he cannot work; he is on a disability pension, and he is just out from gaol. At this stage he appears to be over an addiction to heroin. How likely that is to continue one does not know as I do not have the benefit of any expert advice on it.

53   It does seem to me that he ought to be provided with something to give him a start; whether he needs clothes and furniture to set him up elsewhere or wants to buy some older car. I think some small amount is appropriate because it may just be what is necessary to stop him going back to where he was last year. It may be that it does not, but it is at least something that might help him out there. I am mindful of the fact that he has already had provision and that the deceased treated him fairly generously but, notwithstanding these facts, I think a small legacy is appropriate.

54   Accordingly, the orders that I make are as follows:

(1) I order that the plaintiff receive a legacy of $20,000 conditional upon him vacating the premises 18 Crowdace Street, Elermore Vale at a time to be nominated by the defendant on giving one month's notice to the plaintiff;
(2) I order the plaintiff's costs on a party and party basis be paid out of the estate of the deceased;
(3) I order the defendant's costs to be paid or retained out of the estate of the deceased on an indemnity basis;
(4) I give leave to make any further application for enforcement or other necessary orders;
(5) I order the exhibits be returned.

Last Modified: 07/30/2001