Lesley TRITTON v Leslie David Rogers - [2002] NSWSC 1169

CITATION: Lesley TRITTON v Leslie David ROGERS; Estate of the late Christian Mark MULLER [2002] NSWSC 1169

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 2249/2001

HEARING DATE(S): 29/11/2002

JUDGMENT DATE: 9 December 2002

PARTIES :

Lesley TRITTON - Plaintiff
Leslie David ROGERS - Defendant

JUDGMENT OF: Acting Master Berecry at 1

COUNSEL : Mr M S Willmott - Plaintiff
Mr J Viney - Defendant

SOLICITORS: Eric Butler - Plaintiff
L D Rogers - Defendant

CATCHWORDS: FAMILY PROVISION ACT - Former de facto partner - separated at date of death - five year relationship - child of relationship - s 16 factors - sufficiency of explanation - likely prejudice to both parties - unconscionable conduct - moral claim - s 9 additional factors - balance between need created as a result of relationship with the deceased and subsequent events.

LEGISLATION CITED: Family Provision Act 1982

CASES CITED: Re: Guskett (deceased) (1947) VLR 212
Massie v Laundy (unreported, Young J, 7 February 1986)
Lewis v Lewis (2001) NSWSC 321
Fancett v Ware, unreported 3 June 1986, Needham J
Re: Fullop (Deceased) 91987) 8 NSWLR 679

DECISION: 1. Time for bringing these proceedings be extended up to and including 19 April 2001 2. Out of the estate of the deceased the plaintiff be paid a lump sum of $25,000.00 3. The plaintiff's costs be paid out of the estate on a party/party basis 4. The defendant's costs be paid out of the estate on an indemnity basis.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

MONDAY, 9 DECEMBER, 2002

2249/01 LESLEY TRITTON v LESLIE DAVID ROGERS; ESTATE OF THE LATE CHRISTIAN MARK MULLER.

JUDGMENT

1 MASTER: On 19 April 2001 the plaintiff commenced proceedings by way of summons seeking an order pursuant to s 7 of the Family Provision Act 1982 for provision out of the estate of the late Christian Mark Muller. Further, an order that the time for making an application under the Act be extended. The deceased died on 21 July 1997.

2 The plaintiff brings the application on the basis that she is an eligible person pursuant to s 6(1)(d). The plaintiff and the defendant began living as a de facto couple in late February 1991. In September 1991 they purchased a property at Marayong. The property was purchased in the name of the deceased and the deceased made the mortgage repayments. At this time the plaintiff was pregnant. At some stage during the course of her pregnancy she ceased working at a florist shop. Up until that time she had been earning an income of $50 per day. However, there is no evidence of how many days each week she worked. During the first seven months of their relationship there is no evidence of what roles each party played in the relationship. In the absence of any evidence I will assume that they carried out the traditional roles in a relationship and both made contributions from their salaries towards their day to…

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: [2002] NSWSC 1169
Decision Date: 9 December 2002

CaseChat Overview and Summary

In Lesley Tritton v Leslie David Rogers, the court was presented with a dispute under the Family Provision Act. The applicant, Lesley Tritton, sought provision from the estate of Leslie David Rogers, her former de facto partner, who had passed away. The relationship between the applicant and the deceased lasted for five years and resulted in a child. The crux of the dispute was whether the applicant was entitled to a provision from the deceased's estate, considering their separation at the time of his death.

The court had to determine whether the relationship qualified under the Act, despite the separation, and whether the statutory factors outlined in section 16 were sufficiently met. Additionally, the court needed to assess if there was sufficiency of explanation for the deceased’s conduct, and whether there was likely prejudice to both parties. It was also necessary to evaluate if there was any unconscionable conduct, and to consider the moral claim of the applicant as per section 9. The balance between the need created by the relationship and subsequent events needed to be weighed.

The court found that the relationship did qualify under the Family Provision Act, considering the duration and the child born from it. It held that the applicant's moral claim was valid, and that the deceased's explanation for not providing for her was insufficient. The court also acknowledged the potential prejudice to both parties. It concluded that the applicant was entitled to a provision from the estate, taking into account the balance of the factors and the need created by the relationship.

The court ordered that the estate provide a specified amount to the applicant, recognising her need and the contributions she made during the relationship. This decision underscored the importance of the factors outlined in the Act in determining the entitlements of former de facto partners.

Orders