Mao v Peddley - [2001] NSWSC 254

Reported Decision:
(2002) DFC 95-249

New South Wales

Supreme Court

CITATION: Mao v Peddley [2001] NSWSC 254

FILE NUMBER(S): SC 4011/99

HEARING DATE(S): 4 - 8 August, 11-13 December 2000

JUDGMENT DATE:
9 April 2001

PARTIES :

Jenny (Zhi Ying) Mao (Plaintiff)
Ronald Peddley (Defendant)

JUDGMENT OF: Master McLaughlin

COUNSEL : M. Willmott (Plaintiff)
S. Reuben (Defendant)

SOLICITORS: Altobelli & Associates (Plaintiff)
Douglas J Millard with G H Healey & Co - Avalon and Ronald Peddley & Associates (Defendant)

CATCHWORDS: Family Provision - Status of Plaintiff as an eligible person - Domestic relationship - Whether Plaintiff was de facto spouse of the Deceased - Matters to be considered - Plaintiff resided in Australia whilst the Deceased essentially resided in Thailand - Plaintiff resident in house of Deceased in Sydney - Plaintiff never visited Deceased in Thailand - Application by Plaintiff for permanent residency grounded upon a de facto relationship with another person during part of the period whilst Plaintiff now asserts she was in a de facto relationship with the Deceased - Present assertion by Plaintiff that statements made by her to the Department of Immigration were deliberately false - Credit of Plaintiff - Statements by Deceased relevant to existence of a de facto relationship with Plaintiff - Whether Plaintiff was living in a close personal relationship with the Deceased - Whether Plaintiff is an eligible person within paragraph (d) of definition - Membership of same household - Concept of dependency - Factors warranting the making of the application - Competing claims of benficiaries - Plaintiff has remained in residence in Deceased's house since death of Deceased - Cross-claim by executor for possession of house property - Claim by executor for mesne profits

LEGISLATION CITED: Family Provision Act 1982
Property (Relationships) Act 1984

CASES CITED: Roy v Sturgeon (1986) 11 NSWLR 454
Simonis v Perpetual Trustee Company Limited (1987) 21 NSWLR 677
Thompson v Department of Social Welfare (1994) 2 NZLR 369
Murdoch v Johnson (McLaughlin M, 27 May 1996, unreported)
Nagatomi v Hudson (Young J, 18 September 1997, unreported)
Munro v Lake (McLelland J, 8 February 1991, unreported)
Wagstaff v Wagstaff (Master Windeyer, 6 November 1991, unreported)
Markulin v Drew (Young J, 12 August 1993, unreported)
Re Fulop (1987) 8 NSWLR 679
Churton v Christian (1988) 13 NSWLR 241
Petrohilos v Hunter (1991) 25 NSWLR 343

DECISION: See paragraph 118

1 MASTER: These are proceedings under the Family Provision Act 1982.

2 By summons filed on 17 September 1999 the Plaintiff, Jenny (Zhi Ying) Mao, claims an order for provision for her maintenance and advancement in life out of the estate and/or notional estate of the late Michael Alan Tytherleigh Dale (to whom I shall refer as “the Deceased”).

3 The Deceased died on 21 February 1999. He left a will dated 17 January 1980, probate whereof was on 11 August 1999 granted to Ronald Peddley, the executor named in such will (who is the Defendant to the present proceedings).

4 By that will the Deceased left the…

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 Mao v Peddley

Details

AGLC: Mao v Peddley [2001] NSWSC 254
Case: [2001] NSWSC 254
Decision Date: 9 April 2001

CaseChat Overview and Summary

The case of Mao v Peddley involved a claim by Mao, the plaintiff, for provision from the estate of the deceased, Peddley. The central issue was whether Mao was an eligible person under the Family Provision Act to make a claim against the deceased's estate. Specifically, the court needed to determine if Mao had been in a de facto relationship with Peddley at the time of his death, given that Mao had primarily resided in Australia while Peddley had resided in Thailand for most of their relationship. This raised questions about the nature and duration of their relationship, and whether Mao had been living in a close personal relationship with Peddley as required by the Act.

The legal issues the court had to decide included the definition and scope of a de facto relationship under the Family Provision Act, the relevance of the parties' residency and visits, and the credibility of Mao's statements regarding her relationship with Peddley. The court considered various factors, including the length of their relationship, the degree of emotional and financial interdependence, and the conduct of the parties. It also examined the statements and evidence provided by Peddley about their relationship, as well as the circumstances surrounding Mao's application for permanent residency in Australia.

The court found that Mao and Peddley had not been in a de facto relationship as defined by the Family Provision Act. The court determined that there was insufficient evidence to support a finding of a close personal relationship given the significant geographical separation and lack of evidence of shared life. The court also highlighted inconsistencies in Mao's statements to the Department of Immigration and her credibility. Consequently, the court dismissed Mao's application for provision from the estate. In addition, the court ordered that Mao vacate the deceased's property and pay the executor mesne profits for the period of her unauthorised occupation.

Orders