Lubis v Walters as Administrator of the Estate of Robert David Walters deceased

[2009] NTSC 23

Lubis v Walters as Administrator of the Estate of Robert David Walters deceased

[2009] NTSC 23

PARTIES:	LUBIS, IKA KARTIKA
v
WALTERS, ROBERT EDWARD as the Administrator of the Estate of Robert David Walters deceased
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	64 of 2008 (20815199)
DELIVERED:	28 May 2009
HEARING DATES:	16, 17, 18 February, 24 March, 6 April 2009
JUDGMENT OF:	ANGEL J
CATCHWORDS:

DE FACTO RELATIONSHIPS – DE FACTO RELATIONSHIPS ACT 1991
(NT) – Whether a commercial arrangement or bona fide domestic relationship –

revocation of Letters of Administration.

Administration and Probate Act 1969 (NT) s 66, Sch 6 Pts II and III, ss 26, 41

De Facto Relationships Act 1991 (NT) ss 3(1), 3A

Briginshaw v Briginshaw (1938) 60 CLR 336; Hibberson v George (1989)
12 Fam LR 725; In Re Fagan (deceased) (1980) 23 SASR 454; Mavrideros v
Mack (1998) 45 NSWLR 80; Nolan v Nolan and Another (2003) 10 VR 626;
Pelka v Secretary, Department of Family and Community Services (2006)
151 FCR 546; Quijarro v Robson [2008] NSWSC 818; Roy v Sturgeon (1986)
11 NSWLR 454, referred.

REPRESENTATION:

Counsel:

Plaintiff:	G Clift and P Mariotto
Defendant:	I Morris

Solicitors:

Plaintiff:	De Silva Hebron
Defendant:	Hunt & Hunt

Judgment category classification: B

Judgment ID Number:	Ang200903
Number of pages:	22
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Lubis v Walters as Administrator of the Estate of Robert David Walters deceased

[2009] NTSC 23

No. 64 of 2008 (20815199)

BETWEEN:

IKA KARTIKA LUBIS

Plaintiff

AND:

ROBERT EDWARD WALTERS as the
Administrator of the Estate of Robert

David Walters deceased

Defendant

CORAM:  ANGEL J

REASONS FOR JUDGMENT

(Delivered 28 May 2009)

1. These proceedings concern a dispute over the estate of Robert David Walters

   deceased who died intestate on 24 January 2008 in Langkawi, Malaysia.

   The deceased, an Australian, formerly of Darwin, was 62 years of age at the

   time of his death. In the years prior to his death the deceased had lived on

   his boat, the Agapantha, which he sailed between locations in South East

   Asia, principally Langkawi in Malaysia and Phuket in Thailand.

2. On 22 April 2008 the defendant was granted Letters of Administration of the

deceased’s estate. On that same day the defendant, without further ado,
distributed over $600,000 cash from his late father’s estate to himself and

entities under his control. The defendant is the only child of the deceased.

1. On 3 June 2008 the plaintiff, an Indonesian National living in Malaysia, who

was born on 22 August 1979, commenced the present proceedings against
the defendant claiming that she was the de facto wife of the deceased at the

time of his death and that she had been so for a continuous period of more

than two years prior to his death and therefore entitled to a share of and

interest in the deceased’s estate. She also seeks to have the defendant’s

grant of Letters of Administration revoked and orders that the administration

of the estate of the deceased be granted to the Public Trustee or such other
person or persons as the Court deems fit. Pending judgment, an interlocutory

injunction was granted prohibiting the defendant from dissipating the

monies paid out from his late father’s estate.

1. The defendant says that the relationship between the plaintiff and the

   deceased was a financial arrangement only in which the deceased paid the

   plaintiff for providing cooking, cleaning, household and sexual services.

2. Section 66 and Schedule 6 Parts II and III of the Administration and Probate

   Act 1969 (NT) make provision for de facto spouses to participate in intestate

estates. In order to qualify under these provisions, a de facto spouse must be
the de facto spouse of the intestate for a continuous period of not less than

two years immediately preceding the intestate’s death.[1]

1. The definition of a de facto relationship is found in ss 3(1) and 3A of the

   De Facto Relationships Act 1991 (NT):

   “3 Definitions

   (1) In this Act, unless the context otherwise requires –

   …

   de facto partner, of a person, means a person who is in a de facto

   relationship with the person.

   de facto relationship has the meaning in section 3A.”

   “3A De facto relationships

   (1) For this Act, 2 persons are in a de facto relationship if they are

   not married but have a marriage-like relationship.

   (2) To determine whether 2 persons are in a de facto relationship, all
   the circumstances of their relationship must be taken into account,
   including such of the following matters as are relevant in the

   circumstances of the 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 them;

   (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 their relationship.

   (3) For subsection (2), the following matters are irrelevant:

   (a) the persons are different sexes or the same sex;

   (b) either of the persons is married to another person;

   (c) either of the persons is in another de facto relationship.”

2. The principal issue before the Court is whether the plaintiff and the

   deceased were in a de facto relationship, and if so, whether for a continuous

   period of not less than two years immediately preceding the death of the

   deceased. As stated above, a de facto relationship is defined as the

relationship between two persons who are not married but who are in “a
marriage–like relationship.”[2] Determining whether a de facto relationship
exists between two persons requires a court to consider “all the
circumstances of their relationship”.[3]

1. Ex facie the relationship between the deceased and the plaintiff can be said

   to be a de facto relationship based on matters not in contest, namely, the

relationship was sexual, they cohabited on board the Agapantha from
approximately January 2005 until the deceased’s death January 2008 (albeit
that the plaintiff undertook five trips to Bali during this time, only one with

the deceased) and the plaintiff who cooked, cleaned, and did other domestic
duties and maintained a home was financially dependent on the deceased.

1. While these factors are important, they are not necessarily conclusive. The

crux of the defendant’s argument and the central question before the Court
is the true character of the relationship. The defendant says the relationship

between the two was essentially a financial arrangement, centred upon

payment to the plaintiff for the provision of sexual and household services.

As such, the defendant says it was not a de facto or “marriage–like”

relationship.

[10]   Whether a “marriage–like” relationship existed between the deceased and

the plaintiff is a question of fact.[4] The Court must have regard to the

plaintiff and the deceased’s personal relationship as a whole, having regard

to all the circumstances of the case including the matters specified in s 3A.

This requires the Court specifically to consider those factors which weigh

against a “marriage–like” relationship and those which weigh in favour of
such a relationship.[5] The legislation speaks of “a” marriage–like
relationship. Of course “marriage–like” relationships, like marriages, can be
loving or loveless, weak or strong, happy or unhappy, lengthy or short–

lived; indeed they are almost infinite in variety.

1. The plaintiff and the deceased first met each other in Sanur in Bali in or

around late August or early September 2004. They were introduced to each
other through a prostitute named Ti Tin. At the time Ti Tin was the
plaintiff’s neighbour and was involved in a paid sexual relationship with the

deceased. The plaintiff’s evidence is that Ti Tin asked the plaintiff to

accompany the deceased, a male friend of the deceased’s and Ti Tin on a
cruise on board the Agapantha to Lombok in return for 500,000 Rupiah.

1. The defendant submitted there is a strong inference that there was a shared

expectation that the plaintiff would provide sexual services to the
deceased’s friend (known only as Arvin) on the cruise to Lombok. I agree.

It is quite reasonable to conclude that a meeting in which a female prostitute

brings a female companion to meet a regular male customer of the prostitute

and another man involves prospects of paid sex. However, the plaintiff did
not participate in this cruise, she says, because of this very expectation.

1. The plaintiff and the deceased met again some weeks later. On this occasion the plaintiff, the deceased, Ti Tin and the defendant had lunch in Sanur

   before going to the Agapantha which was moored in Benoa Harbour.

   According to the plaintiff, on returning to the boat, the deceased and Ti Tin

went inside the main cabin for about five minutes while the plaintiff and the
defendant conversed on the deck. The defendant says in his affidavit that it

was his understanding that his father had arranged for the plaintiff to
provide him – the defendant – with sex on this occasion. His affidavit also

maintains that, on the following day, he witnessed the plaintiff go down into
the cabin of the Agapantha with the deceased, and that the deceased later

paid money to the plaintiff which the defendant assumed was for sex.

1. There is no suggestion from either party that sexual activity between the

   plaintiff and the defendant ever occurred or that there was ever any

negotiation about sexual activity between the plaintiff and defendant while
the plaintiff was on board the Agapantha. The plaintiff makes no mention of

the occasion referred to by the defendant when he says she went down to the

cabin with the deceased either in her affidavit or testimony before the court.
She was not questioned about this alleged incident.

1. Some days after the first meeting on the Agapantha the deceased offered

   both Ti Tin and the plaintiff jobs to undertake various cleaning and

   maintenance related tasks on board the Agapantha for a wage of 175,000 Rupiah per day each. The plaintiff’s job apparently involved cleaning the engine room and painting. This sharing arrangement persisted for but a short

   period of time, a number of days - less than a week. According to the

   plaintiff, Ti Tin and the deceased stopped having paid sex and Ti Tin quit

   her job pressing the plaintiff to do the same. However, the plaintiff told the

   deceased that she wished to continue with her work and left a telephone

number for the deceased to contact her. There is no suggestion the plaintiff
had sex with the deceased while she and Ti Tin worked on the Agapantha

together.

[16]

The deceased and the plaintiff met later the same week on the Agapantha The plaintiff would shop, cook, clean and perform maintenance on board the

Agapantha for a wage of 175,000 Rupiah per day. The plaintiff gave

evidence that on this occasion the deceased had “made a signal” to go down to the cabin and have sex. She said she refused this request and explained to

the deceased that she “really needed a job not doing sex” and that the
deceased did not persist in his sexual advances.

1. The plaintiff’s testimony is that she and the deceased did not develop a

   sexual relationship until 2 October 2004. She says that this occurred only after she and the deceased had developed a friendship over the course of a number of weeks of her working on the boat and after the deceased had met

   various members of her family, including her son.

2. The deceased, the plaintiff, the defendant and another passenger named Greg

sailed on board the Agapantha from Bali on 24 December 2004. It was about
this time that the plaintiff ceased paid work upon the Agapantha and was

instead provided by the deceased with a monthly stipend of 5000 Baht

(approximately 1,000,000 Rupiah) which she used to support her son.

1. From that time to the death of the deceased, save for times the plaintiff

spent with relatives in Bali, the plaintiff and the deceased cohabited on the
Agapantha and sailed around South East Asia - principally between

Langkawi in Malaysia and Phuket in Thailand. The defendant joined them on a number of occasions. On one occasion the plaintiff’s brother accompanied the deceased and the plaintiff. The deceased often docked the Agapantha in port for extended periods of time, during which the deceased

and the plaintiff socialised with the expatriate boating community.

1. The defendant says this history is consistent with the formation and

   maintenance of a paid sexual relationship, in which the deceased replaced Ti Tin with a younger and more useful woman, the plaintiff, who cleaned,

   cooked and provided sexual services in exchange for money.

2. In addition to the circumstances in which the plaintiff first met the deceased,

   it was submitted there is other evidence supporting this conclusion. It was

submitted that the plaintiff’s initial wage - 175,000 Rupiah per day -
approximates the amount that the plaintiff would have received if she had
gone on the boat cruise to Lombok (estimated to be some 166,000 Rupiah

per day) and provided sexual favours.

1. It was submitted the plaintiff’s initial job (of cleaning and undertaking maintenance) was at odds with her background as a beauty worker. It was submitted the wage she received for this work is inconsistent with the lesser amount she is currently receiving per week cleaning a similar boat in Telaga Harbour, Langkawi, leading to an inference that she was being paid by the

deceased for more than merely boat maintenance. The wage that the plaintiff
at time of trial was receiving for cleaning a boat in Telaga Harbour was
400 Malaysian Ringit per month – approximately 155 Australian dollars as

of 2 April 2009. The figure that she was initially paid to do a similar job by the deceased (175,000 Rupiah per day) is considerably more generous (some 26 Australian dollars per day) than the figure of 5 Australian dollars per day

which the plaintiff is paid in Telaga, Malaysia for similar work.

1. Other evidence submitted to be at odds with the existence of a genuine “marriage–like” relationship were the circumstances surrounding the

   holiday, split or “time out” taken in Bali by the plaintiff between 13 June

   2005 and 6 August 2005. The defendant says that this split was precipitated

   because the deceased had refused to allow the plaintiff to have her son

   accompany them on the boat. The plaintiff admitted that her trip to Bali was taken partly to alleviate tensions between the plaintiff and the deceased. The

   plaintiff does not contest that the deceased had sexual relations with a

   number of bar girls in Phuket in the plaintiff’s absence during this time. However, while such behaviour could be inconsistent with the plaintiff’s

claims that the couple were loving, having a sexual relationship with another
person outside the relationship does not of itself bring a de facto

relationship to an end, there being no legal requirement that a de facto
relationship be sexually monogamous.[6]

1. The defendant stresses that the onus of proof is upon the plaintiff.

2. In a case such as this the proper standard of proof is that referred to in

   Briginshaw v Briginshaw,[7] proof on the balance of probabilities but with due

regard to the gravity of the consequences of making the declaration sought
by the plaintiff and the circumstance that the deceased can not give

evidence.[8]

1. The defendant also raises the issue of the appropriate weight that should be

   given to the evidence of the plaintiff, citing a number of authorities,

   including Nolan v Nolan and Another[9] which rightly say that caution, even

   suspicion, should be employed when evaluating claims like that of the present plaintiff against a deceased’s estate. Counsel for the defendant

stressed the lack of corroborative evidence as to the circumstances
surrounding the early stages of the relationship, and that neither Ti Tin nor
another dock worker “Budi” were called to provide their accounts of the
initial meetings between the plaintiff and the deceased or to testify as to

wage rates for boat cleaning and maintenance in Bali at that time. I take into
account that a great deal of the plaintiff’s testimony is uncorroborated – for
example that in January 2005 the deceased asked the plaintiff to stay on the
Agapantha with him as his girlfriend, indefinitely – an account which seeks

to confirm the genuine nature of the relationship in a blunt and obvious way.

1. Of course arguments about the weight that is ascribed to the evidence of a

   particular party can cut both ways. The defendant also has much to lose if the plaintiff is to participate in his late father’s not inconsiderable estate.

   Many of the defendant’s allegations against the plaintiff likewise are

uncorroborated. These include his account of the plaintiff going to the cabin
with the deceased and then being paid, his contention that the separation
between the deceased and the plaintiff was precipitated by the deceased’s

refusal to allow the plaintiff’s child on board the boat as well as his
insistence that his father had told him that “its all yours”, in referring to

what would happen to the deceased’s assets after the deceased’s death.

1. The plaintiff has not shied away from including a number of uncomfortable

   details in her testimony. They include her evidence that Ti Tin was a

   prostitute, that the deceased had from time to time consorted with bar girls

   in Thailand, that she was aware of a conversation between the deceased and

   the defendant which alluded to a competition between father and son as to

   (presumably) who would sleep with the plaintiff first, albeit that the

   deceased may have been joking.

[29]   There is considerable uncertainty surrounding the true circumstances of the

plaintiff’s initial relationship with the deceased. It would be naïve to say

that the circumstances in which the plaintiff first met the deceased were

bereft of any hint of paid sex. The deceased’s overtures to the plaintiff

during this period indicate that he was pursuing – and was willing to pay –

her for sexual favours. Such is consistent with the evidence before the Court

that the deceased had engaged in numerous paid sexual relationships,

including in Indonesia with Ti Tin, and with bar girls in Thailand. It is also consistent with the plaintiff’s assertion that once she had agreed to work on the boat, the deceased had promptly “made a signal” for her to go down to

the cabin to have sex. Moreover the plaintiff was first introduced to the

deceased by Ti Tin, a prostitute, or, as the defendant would have it, a

fellow–prostitute.

1. However, none of these circumstances necessarily lead to a conclusion that

   the plaintiff entered into a financial arrangement to provide sexual services

which endured to within two years of the death of the deceased. If the
plaintiff’s evidence is to be accepted the times she was directly approached

by the deceased to provide sex in exchange for money she rejected it.

According to the plaintiff this only happened twice, once when she was

invited on the cruise to Lombok, and again, when first hired to work on the

boat. This is at odds with the defendant’s account that he witnessed a “third”

meeting in which the plaintiff visited the deceased and was paid.

1. Evidence was led that the deceased told the defendant that the deceased had

a will and that the defendant would alone inherit the deceased’s estate.
No will has ever been found despite the defendant searching therefor.

The evidence led was hearsay. It was not admissible to prove the truth of the

deceased’s statement, or as supportive of the deceased’s relationship with

the plaintiff being no more than, at most, a casual sexual liaison. The

evidence was only admissible as relevant to the defendant’s belief or state of
mind as to his expectation and background to his conduct immediately
following the grant to him of Letters of Administration.[10]

1. There was also evidence of a serious rift between the deceased and the

   defendant and of the deceased speaking in grossly disparaging terms of the

   defendant and if the deceased did speak of a will to the defendant it may

well have been a ruse. On the other hand it may have been true at the time
and the deceased may have decided later to destroy it. None of the evidence
about the deceased having a will can assist the Court in its conclusion as to
the true nature of the relationship between the plaintiff and the deceased.

1. Whatever the true circumstances as to the initial relationship, I am satisfied

   that the relationship between the plaintiff and the deceased developed into

something other than a mere financial arrangement, and at a time well before
the deceased’s death on 24 January 2008. Much of the evidence for this is

found in the affidavits and testimony of the people with whom the couple

came into contact as they cruised together around South East Asia.

1. James Gilbert Watt, who met the couple in February 2005, gave evidence

   that while there was a considerable amount of conflict between the plaintiff

and the deceased at the time, “from almost the first time I met the deceased
and Ika [the plaintiff] I regarded them as a couple.” Watt’s wife Caroline
also attested to conflict – including that the deceased had hit the plaintiff
when he had been drinking – but she also states that it was her impression
that the couple, even at this early stage of their relationship, were making

plans for a shared future, noting that they were making plans to build or rent

a plane together. She states that it was her impression that “their
relationship blossomed and grew over time.”

1. Other evidence supports the conclusion that the plaintiff and the deceased

   were in a genuine de facto relationship. I was particularly impressed with the testimony of Luke Hendrick Van der Vlies, who, along with wife Eva,

met the plaintiff and the deceased in November 2006. In both his affidavit
and testimony before the court Mr Van der Vlies stated that he had often
observed situations wherein older Western men would retain younger Asian
women to cook, clean and to provide them with sexual favours while
travelling. He clearly distinguished the plaintiff and deceased’s relationship

from such arrangements stating that “I look upon it like I said before, how I

love my wife, how I treat my wife, and I also see Bob [the deceased] and Ika

[the plaintiff] in the same situation.” He went on to state that “They treat

each other respectfully when they – every time we met at functions and
parties and they were always a respectful couple, a loving couple together.

Now, you know, it’s just not the same when you see what you call a

commercial arrangement.” Eva Van der Vlies supported this evidence stating
that the plaintiff and the deceased behaved in a manner that was similar to

her and her husband.

1. There is other evidence which indicates the deceased and the plaintiff had a

   genuine “marriage–like” relationship over the course of the last two or more years prior to the death of the deceased. This includes the accounts of other

expatriate boaters such as Gregory Sutherland who said “It was obvious to
me that they not only shared a romantic relationship but loved one another”
and that he had observed that the plaintiff had adopted a carer role towards
the deceased in the last month of the deceased’s life. Similarly, Sutherland’s

wife said that she saw or met with the plaintiff and the deceased on an
almost daily basis between August 2007 and December 2007, and provided a
similar account of the relationship between the couple.

1. The fact that the deceased and plaintiff were together from approximately

   January 2005 until the deceased’s death in January 2008 is in itself

   indicative of something more than a financial arrangement. While there is

evidence before the Court that it is not uncommon practice for some
Westerners to employ Asian girls to cook, clean and provide sexual services

for some months while they are sailing around South East Asia it seems to

me that if the relationship between the plaintiff and the deceased was a
purely commercial one the deceased, given his wants, would in all

likelihood have found a new girl or girls to supplement or supplant the

plaintiff within this period. It is unlikely that the deceased would have

invited the plaintiff’s brother on board the boat for a holiday from

November to December 2005 or that the deceased would have consented to

meet plaintiff’s family, including her father, in or around December 2006,
if the relationship between the parties was merely commercial.

[38] In Quijarro v Robson,[11] the Court said:

sexual liaison without the requisite elements of mutual commitment.

“As in many of these matters the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance

with statements made to them by the persons involved in a
relationship. It is usually not possible to reject the evidence of
witnesses of one side and accept the evidence of witnesses of another
in coming to a decision as to whether or not a de facto relationship
has been established. It is also necessary to bear in mind it is
incorrect to think that perfection and harmony is a necessary
requirement in de facto relationships but not in married relationships:
Bar-Mordecai v Hillston [2004] NSWCA 65. Nevertheless for a
de facto relationship to continue to exist it is necessary for there to
be a sense of commitment on both sides.”

1. It is apparent from the witnesses to which I have referred that the plaintiff

and the deceased were generally supportive of each other and an affectionate
couple. I find there was a good deal of mutual affection and support.
Their relationship was manifested by their cohabitation, their sharing of

meals, their exchanging gifts, their entertaining friends aboard the
Agapantha, their joint visits to friends, the deceased mingling with family

members of the plaintiff, the deceased’s financial assistance in support of
the plaintiff’s young son, his paying the costs of the plaintiff’s divorce and

the plaintiff’s care and attention to the deceased leading up to his death.

1. I am satisfied that the relationship between the plaintiff and the deceased

   was not a purely commercial one. Nor do I think it was merely a casual lives at emotional and mutually supportive levels. They were, in the words

of the witnesses, “a couple”, living together as husband and wife, a
circumstance not ended by their physical separation when the plaintiff went
alone to Bali visiting her young son and other relatives. I am satisfied that
the deceased treated his relationship with the plaintiff as much more than a

casual sexual liaison and that they had planned to live together for their
foreseeable future sharing their lives together.

1. I find the plaintiff and the deceased were in a de facto relationship for a

   period of not less than a continuous period of two years immediately

   preceding the death of the deceased and that the plaintiff was a de facto

   partner of the deceased for the purposes of ss 66 and 67 and Schedule 6 of

   the Administration and Probate Act (NT).

2. I turn to the second issue raised by the plaintiff, namely whether the

   defendant’s Letters of Administration over the estate of the deceased should

   be revoked. The power of the court to do so is under ss 26 and 41

   Administration and Probate Act (NT). The plaintiff relies primarily upon

s 41(1)(c) which provides that the court may discharge or remove an
executor or administrator if, after appointment, he or she refuses, or is unfit,
to act in the office, or is incapable of acting therein.

1. The plaintiff says the defendant is unfit to administer the estate of the

   deceased because whilst aware of the plaintiff’s potential claim he

completely disregarded it and having obtained Letters of Administration,
in ignorance of his statutory duties, inter alia, to advertise to alert creditors

or other claimants upon the estate, he distributed the entire cash assets of
the estate to himself and entities controlled by him.

1. Throughout the proceedings the defendant has maintained his belief that the

   plaintiff was only in a commercial relationship with the deceased.

   The defendant says he genuinely held this belief at the time he applied for

   Letters of Administration of his late father’s estate. The defendant had only

   been in sporadic contact with the deceased in the last years of the deceased’s

   life as a result of an argument they had had. The defendant had only met the

   plaintiff and the deceased together on a number of limited occasions.

   The first occasion was when the plaintiff first met the deceased in Bali and

   the occasion when the Agapantha initially sailed to Phuket from Bali in

early 2005. Given the presence of Ti Tin at the initial meeting, it would
have appeared to the defendant that the plaintiff might well have been

available for sexual activity with the defendant. The deceased’s known
predilection for paid sex also may well have led the defendant to his

conclusion concerning the nature of the relationship between the plaintiff
and the deceased. In the circumstances I think it is probable that the
defendant was ignorant of the true relationship between the plaintiff and the

deceased. The plaintiff has not made out her case of bad faith against the

defendant.

1. It is a matter of significance however that the defendant sought neither legal

advice nor information from elsewhere as to his basic duties and obligations
as administrator of his late father’s estate. That and given the obvious
acrimony between the parties and my conclusion that the plaintiff as the
former de facto of the deceased is entitled to a share of the intestate estate

as provided for in Item 2 of Schedule 6 to the Administration and Probate Act (NT) it is preferable that the estate be administered by Public Trustee.

I note that the assets of the estate are said to comprise the monies paid by

the defendant to himself and his entities, the Agapantha which is currently

moored at Telaga Harbour Marina in Langkawi, Malaysia in respect of
which accumulated unpaid management, mooring and power fees are due
and a Cessna 182 aircraft situate at Darwin Airport in respect of which some
fees may well be owing.

1. So far as the plaintiff’s application to remove the defendant as an

administrator of the estate of the deceased is concerned, the question is,
as stated in Mavrideros v Mack:[12]

“… whether the due and proper administration of an estate had either
been put in jeopardy or had been prevented either by reasons of acts
or omissions on the part of the executor or by virtue of matters
personal to him, for example, mental infirmity, ill health, or by
virtue of the proof of other matters which established that the
executor was not a fit and proper person to carry out the duties he
had sworn to perform.”

1. The burden which lies on the plaintiff to prove the defendant’s unfitness for

office is an onerous one. A finding that the defendant is unfit is a finding
not to be made lightly.

1. I am satisfied in the present case that the defendant’s conduct in

   immediately paying to himself and his entities the entire cash assets of the

estate in ignorance of his statutory duties and without reference to the
interests of creditors of the estate known or unknown or of others possibly

interested in the estate constituted a serious dereliction of duty which

demonstrates unfitness for office and that this in combination with the

manifest antagonism he displays towards the successful plaintiff renders it proper that the future administration of the estate of the deceased be in the

hands of a neutral party, such as the Public Trustee. The fact is, the

administration of the estate of the deceased by the defendant has not been
“due and proper”.

1. There will be judgement for the plaintiff, and subject to any further submissions of counsel, with orders of the Court as follows:

(1) Declare

(a)	that the plaintiff and Robert David Walters deceased at the time
of the death of the deceased and for a continuous period of more than two years prior to his death were in a de facto relationship

within the meaning of s 3A(1) De Facto Relationships Act (NT);

(b) that the plaintiff as a de facto partner of the deceased is entitled

to a distribution from the estate of the deceased in accordance

with s 66 Administration and Probate Act (NT).

(2)	Order that the grant of Letters of Administration of the estate of the
deceased by this Honourable Court to the defendant on 22 April 2008
be revoked.
(3)	Order that the defendant do forthwith deposit the said Letters of
Administration in the Registry of this Honourable Court.
(4)	Order that the administration of the estate of the deceased be granted
to Public Trustee.
(5)	Order that the defendant do within 7 days account to Public Trustee
as administrator of the estate of the deceased for all monies of the deceased got in or dealt with by the defendant and pay or cause to be
paid to Public Trustee as administrator of the estate of the deceased
all monies transferred by the defendant from the estate of the deceased together with interest thereon from date of transfer to date
of payment at the rate of eight per cent per annum.
(6)	Order that the plaintiff’s costs of and incidental to these proceedings
be allowed out of the estate of the deceased on a solicitor–client
basis.
(7)	Order that the defendant bear his own costs of and incidental to his
administration of the estate of the deceased and of these proceedings.

_________________________

[1] Administration and Probate Act 1969 (NT), Schedule 6 Part II.

[2] De Facto Relationships Act 1991 (NT), s 3A(1).

[3] De Facto Relationships Act 1991 (NT), s 3A(2); Roy v Sturgeon (1986) 11 NSWLR 454.

[4] Hibberson v George (1989) 12 Fam LR 725 at 740; Roy v Sturgeon (1986) 11 NSWLR 454.

[5] Cf. Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.

[6] In Re Fagan (deceased) (1980) 23 SASR 454 at 464–465, per Jacobs J.

[7] 

[8] Briginshaw v Briginshaw (1938) 60 CLR 336.

[9]Nolan v Nolan and Another (2003) 10 VR 626 at 650.	In Re Fagan (deceased) (1980) 23 SASR 454 at 464–465, per Jacobs J.
[10]	Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR

134.

[11] Quijarro v Robson [2008] NSWSC 818 at [36].

[12] Mavrideros v Mack (1998) 45 NSWLR 80 at 108.