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 entirety of his estate equally between his brother Colin Richard Kay Dale and his sister Susan Margaret Sonia Dale.

5    The Deceased (who was working in and was a resident of Thailand at the time of his death) left assets in New South Wales and assets in Thailand. The assets in New South Wales included a house property situate at and known as 215 Raglan Street, Mosman (to which a value of $900,000 was attributed in the inventory of property) and a superannuation entitlement ($440,700), together with other assets, having a value in total of $1,349,071. The assets in Thailand included a shareholding in a company which owned the residence of the Deceased at Pattaya in that kingdom. To that shareholding was attributed a value of 4,300,000 baht (the equivalent in Australian currency disclosed in the inventory of property being $175,081); and also salary and leave entitlements owing to the Deceased at the time of his death, being 1,027,007 baht ($44,308).

6    The Defendant has subsequently received payment of the outstanding salary and leave entitlements of the Deceased (in amounts totalling $45,858), and has transferred to Australia the net proceeds of sale of the company which owned the Deceased’s residence at Pattaya and the moneys held in two bank accounts in Thailand (those amounts totalling $149,739).

7    The assets of the estate presently consist of the Raglan Street property (having a present value of $900,000), furniture (having an estimated value of $3,150), the entitlement of the Deceased in the Maunsell McIntyre Superannuation Fund (having a present estimated value of $440,700), together with an amount held in a cash management account ($113,418) and an amount held in a solicitor’s trust account ($40,177). In consequence, therefore, it is estimated that the total value of the assets of the estate is in the order of $1,500,000.

8    In respect to the foregoing superannuation entitlement it should be noted that the trustee of that fund on 27 September 1999 proposed to pay from the fund to the Plaintiff the sum of $36,000 and to pay to the estate the balance of the entitlement of the Deceased in that fund (see Exhibit A). It is my understanding that the foregoing amount estimated to be $440,700 represents that balance.

9    It will be appreciated that in calculating the value of the estate available for distribution allowance must be made for the costs of the present proceedings. The Defendant will, in any event, be entitled to an order for his costs out of the estate; the Plaintiff, in the event that she be successful in her claim, will also be entitled to an order for costs. In accordance with the prescribed procedure an affidavit has been filed by the solicitor for each party concerning the amounts of those costs. The solicitor for the Plaintiff estimates that the costs of the Plaintiff will total $45,000. The solicitor for the Defendant estimates that the costs of the Defendant will total $32,000.

10    In addition, the legal costs which have been incurred by the estate to the present time, including costs relating to the obtaining of probate and the administration expenses of the estate, total about $27,325.

11    It would appear that the Deceased, who was not resident in Australia for tax purposes from 1989 until the date of his death and did not lodge Australian income tax returns for that period, was not liable in respect to Australian income tax. A letter from the Deceased to the Commissioner of Taxation dated 26 July 1989 set forth the Deceased’s understanding in that regard. There appears to have been no liability of the Deceased for income tax during that period, and in consequence no provision for any such liability should now be made by the estate.

12 The Plaintiff asserts that she was a person with whom the Deceased was living in a domestic relationship at the time of his death, and that, in consequence, she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act. In this regard, I note that the proceedings were instituted after the commencement of the amendments to the Family Provision Act effected by the Property (Relationships) Legislation Amendment Act 1999. By virtue of those amendments the phrase “domestic relationship” has the same meaning in that statute as it has in the Property (Relationships) Act 1984 - this is, a de facto relationship, or a close personal relationship. Those phrases are defined in section 4 of the Property (Relationships) Act.

13    Further, in the event that the Court be not satisfied that she was a person with whom the Deceased was living in a domestic relationship at the time of his death, then the Plaintiff asserts that she had been a member of the same household as the Deceased and that she had been partly dependent upon the Deceased, and that, in consequence, she is an eligible person within paragraph (d) of the definition of that phrase.

14    The Defendant denies the foregoing assertions, and disputes the status of the Plaintiff as an eligible person in relation to the Deceased. I shall, in due course, return to this critical question of the status of the Plaintiff as an eligible person.

15    The Plaintiff was born in China on 18 December 1954, and is presently aged forty-six. The Plaintiff arrived in Australia in about November 1988. According to the Plaintiff, she first met the Deceased in 1988, and they commenced a sexual relationship at the end of 1989. At the time when they met the Deceased was residing in the Raglan Street property, and the Plaintiff was living in rented accommodation at Stanmore Road, Stanmore. The Plaintiff moved into occupation in the Raglan Street property in about April 1991 (at, according to her, the suggestion of the Deceased). At that time the Deceased was working in Thailand, where he spent the major part of each year.

16    The Plaintiff remained in residence in the Raglan Street property from April 1991 until the death of the Deceased (with the exception of a period of fifteen months, an absence which, somewhat curiously, was omitted from her affidavit evidence in chief), and she has continued in residence since then to the present time. She had paid no rent or occupation fee to the estate of the Deceased for the benefit which she has received from occupying the Raglan Street property after the death of the Deceased and, indeed, she has herself been receiving income ($80 a week) from letting out part of that property in the period since the death of the Deceased).

17    The Deceased, who was born in Trinidad on 6 April 1940, appears to have been of English upbringing and education. He was a civil engineer by profession. In 1965 he left England to live and work in Australia. He held an Australian passport, although the evidence does not disclose when he became naturalised as an Australian citizen. In September 1989 he left Australia to take employment with Sindhu Maunsell Consultants in Thailand. With the exception of the trips to Sydney to which I will shortly refer, the Deceased resided and worked in Thailand from then until his death, at the age of fifty-eight.

18    Whilst the Deceased was in Thailand the Plaintiff was involved in what might be described as the administration of the Raglan Street property (although other persons who resided therein were also involved in overseeing the property). At the direction of the Deceased, she attended to various aspects of the maintenance of that house property. She paid a number of small bills in relation to household outgoings from moneys which the Deceased left with her, informing him of what she had done in that regard. They kept in regular communication by telephone, mail or facsimile transmission. A number of more significant bills and business communications such as bank statements were forwarded by the Plaintiff to the Deceased in Thailand.

19    A considerable quantity of evidence was devoted to the circumstances surrounding the acquisition by the Deceased of a house property at Pattaya in Thailand, and the reconstruction of the dwelling upon that property. That house property, which the Deceased had previously occupied as a tenant, was purchased by him (through the vehicle of a company) in about 1997. The Deceased then had the house itself totally rebuilt, and he remained in occupation of the newly constructed residence until his death in February 1999. According to the Plaintiff, that house property (in which, however, she herself did not ever reside and which she did not ever even visit) had been intended by the Deceased and by her to be their matrimonial home. In this regard it should be recorded that, although during the period of her alleged de facto relationship with the Deceased the Plaintiff visited Asia on two separate occasions, she did not choose to include in those trips a visit to Thailand, to be with the Deceased and to see the house which, according to her, was to become her home.

20    It was asserted by the Plaintiff that during the Deceased’s visits to Sydney he and the Plaintiff went out together frequently; that they often ate at a Chinese restaurant and at the Mosman Rowing Club (the Deceased always paying for those meals); that they often had friends to dinner at the Raglan Street house; that the Deceased always visited his doctor when he was in Sydney, and that the Plaintiff accompanied him on those visits.

21    Throughout most of the period whilst the Plaintiff was in residence in the Raglan Street property she was in employment. However, that employment was usually of a casual nature. The Plaintiff said that the reason for that was because the Deceased had in contemplation taking an early retirement, and that he was desirous that the Plaintiff should be available to spend that retirement with him. In consequence, according to the Plaintiff, the Deceased expressed to her a wish that she should not work in permanent full-time employment.

22    Since June 1998 the Plaintiff has been employed as a cashier at the Chinese Cultural Club. In that position she works from 6pm to 2am, receiving a salary of $468 a week gross ($409 a week net). In addition, she receives an allowance of $30 a week in respect to her employment, and has additional income of about $25 a week, that amount representing interest upon deposits totalling $19,000 held in a bank account and dividends upon shares having a present value of about $56,000.

23    The Defendant has a credit card liability in an amount of $2,200, and also owes her solicitors about $15,000 in respect to the costs of the present proceedings.

24    From September 1989 the Deceased was essentially working full-time in Thailand. From then until his death in February 1999, some nine and a half years later, it was usual for the Deceased to return to Sydney and stay in the Raglan Street property twice a year (being in April and in November/December in each year), those visits being for periods ranging from eight to fourteen days on each occasion. However, from December 1991 until December 1993 the Deceased did not visit Sydney; neither did he visit Sydney from April 1994 until April 1995.

25    A considerable quantity of evidence was given by various friends and acquaintances of each of the Deceased and the Plaintiff concerning the observations of those witnesses in relation to the presence of the Deceased in the Raglan Street property and the manner in which the Deceased and the Plaintiff comported themselves together whilst in the presence of other persons.

26    Amongst those witnesses who provided affidavits were Gregory Alan Eisenmenger, who (together with his wife) had resided in the Raglan Street property from October 1989 until April 1991. During that period the Deceased was living in Thailand, although he visited Australia and stayed in the Raglan Street property each April (for his birthday) and each December whilst Mr and Mrs Eisenmenger were in residence.

27    Another of those witnesses was Noel Thiele, who had resided with the Deceased in the Raglan Street property from 18 July 1987 until 16 April 1988, before the Deceased departed for Thailand.

28    It was the practice of the Deceased whilst he was residing in Thailand to communicate with Mr Thiele (by telephone or by facsimile transmission) some time before each of his regular visits to Sydney, with the request that Mr Thiele should during the Deceased’s forthcoming visit arrange at least one social function for him. That was particularly so in respect to his April visits, when the social function was intended as a celebration of the Deceased’s birthday (which fell on 6 April).

29    From the Deceased’s departure from Australia in September 1989 until his own departure from Sydney in November 1995 Mr Thiele socialised with the Deceased frequently during his visits to Sydney and attended a total of about thirty-four functions with him, those functions including dinners and luncheons. Mr Thiele, having reviewed his personal records, including diaries, compiled a schedule (annexure A to his affidavit of 24 February 2000) in respect to those social occasions, setting forth, amongst other matters, the number of persons attending. According to Mr Thiele the Plaintiff attended only ten of those thirty-four functions.

30    Some weeks before April 1990 the Deceased communicated by way of facsimile transmission with Mr Thiele, requesting him to arrange a party to celebrate the Deceased’s fiftieth birthday on Friday, 6 April 1990. The Plaintiff did not attend that celebration. It was almost always Mr Thiele who would collect the Deceased at the airport on his arrival and return him to the airport on his departure when he visited Sydney from Thailand between 1989 and 1995. Mr Thiele removed from Sydney to South Australia on 27 November 1995. However, he thereafter maintained contact with the Deceased by telephone.

31    From August 1995 to November 1996 the Plaintiff was resident in Melbourne, where she conducted a photographic shop business, which she had purchased in that city. That absence from the Raglan Street property for a significant period was not referred to in the Plaintiff’s principal affidavit filed in support of her claim. According to her evidence the Plaintiff returned to the Raglan Street property each month, and was always in residence there during the visits of the Deceased from Thailand. The Plaintiff sold the business in Melbourne in November 1996, that sale resulting in a significant profit to the Plaintiff.

32    Although the Plaintiff asserted that she was the only person who resided in the Raglan Street property on a permanent basis from April 1991 until the death of the Deceased (and, indeed, to the hearing of the present proceedings), the evidence discloses that a considerable number of other people also lived in that property for various periods during that time. Those other persons included a Chinese lady, Helen Lin Jin Heng; a Thai couple, Max and Rattana Taprasert; Noel Thiele; Gregory Eisenmenger and his wife Kittiluck.

33    At the time when the Plaintiff said that she commenced to reside in the Raglan Street property in April 1991 there was already living in that house another Chinese lady, Helen Lin Jing Hang (referred to in the evidence as Helen Lin), who resided there from December 1988 until April 1993. It would appear that Miss Lin (through whom the Plaintiff originally met the Deceased) was residing in the house in the capacity of at least a girlfriend to the Deceased.

34    The accommodation in the dwelling at Raglan Street included three bedchambers. When she arrived there the Plaintiff occupied the smallest of those rooms (what was described as the third bedroom), whilst Miss Lin occupied the largest (what was described as Mike’s room).

35    Despite assertions of the Plaintiff to the contrary, I am satisfied that she continued to occupy the third bedroom except when, on occasions during visits by the Deceased to Sydney, she resorted to the Deceased’s accommodation in the principal bedchamber.

36    It is a fair summary of the evidence of those co-residents of the Raglan Street property that the Plaintiff, although generally residing in that property, was there essentially in the role of an administrator or housekeeper. Further, that she was not the only lady who was present during the short periods whilst the Deceased visited the property, and that she appears not to have been alone in providing favours of a personal nature for the Deceased during those short periods.

37    For example, during one of the visits by the Deceased to the Raglan Street residence, in December 1998, he brought with him, at his expense on a first-class air ticket from Bangkok, a Thai lady Orasa Fong-In (also known as Sar). During that visit, throughout which the Deceased and Sar were sharing a bedchamber, it is unlikely (although not impossible) that the Plaintiff was providing for the Deceased even sexual favours.

38 It will be appreciated that at the outset it is necessary to establish whether or not the Plaintiff is an eligible person in relation to the Deceased. She asserted that she was the de facto spouse of the Deceased at the time of his death and that, in consequence, she is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act.

39    I have had the benefit of receiving written outlines of submissions from Counsel for the respective parties. Those written outlines will be retained in the Court file.

40    In regard to the alleged status of the Plaintiff as the de facto spouse of the Deceased, it is relevant that in 1991 the Plaintiff made to the Department of Immigration an application for permanent residency in Australia. In support of that application the Plaintiff was required to provide written documentation and she was subsequently required to participate in an interview with an officer of the Department.

41    The file of the Department of Immigration in respect to that application by the Plaintiff for permanent residency was in evidence before me (Exhibit 6). The Plaintiff was cross-examined concerning the contents of that file, and, in particular, concerning the form upon which she grounded her application, and concerning the interview conducted with her in November 1991.

42    It was the assertion of the Plaintiff at the time when she made application for permanent residency that she was entitled to such permanent residency in consequence of her being at that time the de facto partner of one John Francis Clarke. In fact, Mr Clarke supported the Plaintiff’s application and accompanied her to the interview in November 1991.

43    It will be appreciated that if, as she alleged to the Department of Immigration, the Plaintiff was in 1991 the de facto partner of Mr Clarke, she could not at that time have been also the de facto partner of the Deceased. Nevertheless, in the present proceedings she asserts that she was at that time the de facto partner of the Deceased.

44    The Plaintiff attempted to explain this inconsistency by saying that, although she had previously been the de facto partner of Mr Clarke, her relationship with Mr Clarke had already come to an end at the time when she was making her application to the Department of Immigration. She also asserts in the present proceedings that the information which she gave to the Department of Immigration, both in her written form of application and during her oral interview with the officer of the Department, was false. That is, it was the sworn evidence of the Plaintiff in the present proceedings that the information which she had given to a Department of the Commonwealth Government (including information given by her in a statutory declaration dated 28 September 1989) was, in her own words, a lie. Such an explanation, even if ultimately accepted as being accurate, reflects most unfavourably upon the character and the credibility of the Plaintiff. It means that she was prepared to lie to the Commonwealth Government in order to obtain for herself an advantage, that advantage being the right to reside permanently in Australia. (It should here be noted that the Plaintiff was successful in her application for permanent residency.)

45    It is also relevant in regard to the application made by the Plaintiff to the Department of Immigration that that application was supported by a letter from the Plaintiff’s sister in China written in February 1991 concerning the asserted knowledge by the Plaintiff’s sister that the Plaintiff was living in a de facto relationship with Mr Clarke. According to the Plaintiff, the content of that letter was false, since, at the time when the letter was written the Plaintiff was (according to her) no longer living in a de facto relationship with Mr Clarke, but was living in a de facto relationship with the Deceased. The explanation offered by the Plaintiff concerning this false statement in the letter from the Plaintiff’s sister was that the letter had, in fact, been written in terms directed by the Plaintiff, and, further, that, although the Plaintiff’s sister was aware of the existence at an earlier time of a de facto relationship between the Plaintiff and Mr Clarke, she had not been informed by the Plaintiff that the relationship had already come to an end by February 1991. The Plaintiff’s sister did not give evidence in the present proceedings.

46    Once again, if that explanation of the Plaintiff concerning the letter from her sister supporting the Plaintiff’s application for permanent residency be accepted, the conduct of the Plaintiff in this regard (and, possibly, that of the Plaintiff’s sister) reflects no credit upon the Plaintiff.

47    Evidence was given by Mr Clarke, by way of affidavit and under cross-examination. The purport of his evidence was that he first met the Plaintiff in 1989 in Australia and they entered into a de facto relationship. Based upon that relationship he supported the Plaintiff’s application for permanent residency. The de facto relationship broke down in April 1991 when the Plaintiff went to reside at the Raglan Street property. However, Mr Clarke maintained a good relationship with the Plaintiff, and was hopeful of what he described as a “reconciliation” with her. He continued to support the permanent residency application which the Plaintiff made in August 19991 and for that purpose he attended an interview with an officer of the Department of Immigration in November 1991. In December 1991 he was, so he said, informed by the Deceased that the Plaintiff and the Deceased were in a de facto relationship, and that, in consequence, it would not be possible for him to effect a reconciliation with her. (I would here interpolate that it was also in December 1991 that the Plaintiff, in providing to the Department of Immigration personal particulars for character assessment, maintained her statement that she was in a de facto relationship with John Francis Clarke.)

48    Although Mr Clarke was aware from at least the time when the Plaintiff went to live in the Raglan Street property in April 1991 that the de facto relationship between himself and the Plaintiff had come to an end, nevertheless he did not inform the Department of Immigration of that fact. Further, in November 1991, that is, some seven months later, Mr Clarke accompanied the Plaintiff to the interview with Mr Harvey Purse, an officer of the Department of Immigration, and maintained to Mr Purse that he and the Plaintiff were still living in a de facto relationship. That information maintained by Mr Clarke to the Department of Immigration was false, and Mr Clarke at the time of that interview was fully aware that it was false.

49    It should here be recorded that, irrespective of whether or not the de facto relationship in which the Plaintiff was living at the time was a relationship with Mr Clarke (as she then asserted) or with the Deceased (as she now asserts), some of the information given by the Plaintiff and Mr Clarke at the interview in November 1991 was, in any event, totally false: for example, the assertion that she and Mr Clarke were paying to the Deceased rent of $400 a month. No rent or occupation fee was ever paid by the Plaintiff to the Deceased. Similarly, the sketch which the Plaintiff drew for Mr Purse at that interview concerning the sleeping arrangements of the various residents at the Raglan Street property was false in depicting the Plaintiff and Mr Clarke as occupying the second bedroon.

50    Mr Clarke in his oral evidence stated that in 1991 he was aware that he was misleading the Department of Immigration.

51    The conduct of Mr Clarke after his relationship with the Plaintiff finally broke down in April 1991 reflects very badly upon the credibility of Mr Clarke, as well as upon the credibility of the Plaintiff herself. It is quite apparent either that the Plaintiff and Mr Clarke in 1991 conspired to mislead a Department of Government of the Commonwealth of Australia in order to obtain an advantage for the Plaintiff, or, alternatively, that each of them has in the present proceedings given false evidence. In either case their conduct has been most dishonourable, and reflects extremely poorly upon the credibility to be given to the evidence of each of them.

52    Also relevant to this question of whether or not the Plaintiff was at any stage living in a de facto relationship with the Deceased, is the fact that throughout the period of fifteen months whilst she was living and working in Melbourne the Plaintiff lodged income tax returns. In no such return did the Plaintiff disclose (as she was required by the terms of each return) that she was either married or living in a de facto relationship, and, if so, the name of her spouse or partner. If, as she asserts in the present proceedings, she was in a de facto relationship with the Deceased from 1991 until the date of the death of the Deceased, then the information contained in her income tax returns lodged during that period is incorrect, in that it does not, as required by the terms of each such return, disclose the name of the Deceased as the de facto partner of the Plaintiff.

53    In regard to the Plaintiff’s alleged status as the de facto spouse of the Deceased, it is also relevant that for about a year, from late 1996 until about Christmas 1997, the Plaintiff was in receipt of an Austudy allowance. In her application for that allowance the Plaintiff did not disclose the Deceased as her de facto husband. Similarly, she did not disclose the Deceased as her de facto husband when she made application for a Jobstart allowance.

54    I have already observed that the phrase “domestic relationship” appearing in paragraph (a)(ii) of the definition of “eligible person” in the Family Provision Act is given the same meaning as in the Property (Relationships) Act. That latter statute describes a de facto relationship in section 4 thereof. Subsection (2) of that section is in the following terms,

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.

55    The Legislature in enacting the foregoing provision appears to have adopted most of the criteria referred to by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454. (See, also, Simonis v Perpetual Trustee Company Limited (1987) 21 NSWLR 677.)

56 Subsection (3) of section 4 provides,

No finding in respect of any of the matters mentioned in subsection 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.

57    In approaching this question of the existence of a de facto relationship between the Plaintiff and the Deceased, it is appropriate for the Court to ask whether the Plaintiff and the Deceased so merged their lives that they were, for all practical purposes, living together as a married couple (see Thompson v Department of Social Welfare (1994) 2 NZLR 369 at 374; see, also, Murdoch v Johnson (McLaughlin M, 27 May 1996, unreported)).

58 In the light of the definition of a de facto relationship appearing in subsection (1) of section 4 of the Property (Relationships) Act (in particular, the requirement contained in paragraph (a) thereof (“who lived together as a couple”)), it is difficult to envisage the existence of a de facto relationship in circumstances where the parties do not actually, throughout the period of the relationship, reside together on a full time basis (subject, of course, to occasional separations resulting from, for example, periods in hospital, holidays taken separately, or separations resulting from employment or work responsibilities).

59    The Plaintiff agreed that during the period of eight and a half years throughout which she alleged that she and the Deceased were in a de facto relationship there was only about sixty-six days during which she and the Deceased resided in the Raglan Street property at the same time.

60    Where, as here, the parties resided together for no more than one or two weeks each year, I am not satisfied that the parties lived in a de facto relationship. The absence in the instant case of such other factors as, for example, jointly owned property, pooling of financial resources, children, public reputation, holidays taken together, fortifies me in that conclusion. The only factor present in the circumstances of the instant case which could lend support to an assertion of the existence of a de facto relationship is the fact that when the Deceased was making his annual visits to Sydney, it appears that on occasion (but not invariably) the Plaintiff and the Deceased spent the night together in the Deceased’s bedchamber at the Raglan Street property, and indulged in sexual intercourse. The existence of a sexual relationship, without more, certainly does not establish the existence of a de facto relationship.

61    Further, as I have already observed, it was the assertion of the Plaintiff to the Department of Immigration that, at least for part of the period during which she now says she was in a de facto relationship with the Deceased, she was living in a de facto relationship with Mr Clarke.

62    It will be appreciated from my foregoing conclusion that, even if the Court were to accept the explanation offered by the Plaintiff concerning the information contained in her application to the Department of Immigration, and to disregard the material contained in that application, nevertheless I would not be satisfied that the Plaintiff was the de facto spouse of the Deceased.

63    However, it must also be appreciated that the foregoing explanation advanced by the Plaintiff reflects very poorly upon the character and credit of the Plaintiff. Further, there is no particular reason why the Court should at this time prefer the evidence offered by the Plaintiff in the present proceedings - evidence offered with a view to the Plaintiff obtaining an advantage for herself from the estate of the Deceased - rather than accept the assertions made by the Plaintiff some ten years previously, that she was at that time living in a de facto relationship with Mr Clarke - those assertions being offered at that time by the Plaintiff for the purpose of enabling her to obtain a very considerable advantage to herself, being the right to reside permanently in Australia (an advantage which she did thereby obtain).

64    I am not satisfied that the Court should necessarily accept the evidence given in the present proceedings by the Plaintiff that the statements made by her to the Department of Immigration in 1991 were deliberately false.

65    It is appropriate here to record my views concerning the reliance to be placed upon the testimony of the Plaintiff. The conclusion which I have already expressed concerning the effect upon her credibility of the Plaintiff’s inconsistent assertions to the Department of Immigration in 1991 and to the Court in the present proceedings is enforced by her lack of frankness in her affidavit evidence concerning such matters as her absence in Melbourne for fifteen months, and the fact and the identity of other persons living in the Raglan Street property during the relevant periods. I considered the evidence of the Plaintiff to be lacking in candour and to be unreliable. I am not prepared to accept her evidence on any matter in issue between the parties where that evidence consists merely of an oral assertion which is unsupported by other credible testimony or by documentary evidence.

66 I have thus far concentrated upon the evidence of the Plaintiff and of her witnesses (especially Mr Clarke) concerning the assertion that she was the de facto spouse of the Deceased. However, the Deceased himself during his lifetime made a considerable number of statements relevant to this question of whether or not he and the Plaintiff were living in a de facto relationship (which statements, by section 32 of the Family Provision Act, were admissible as evidence).

67    One of the most significant of those statements was the statutory declaration made by the Deceased on 15 August 1991 (Exhibit E). In that statutory declaration the Deceased stated,

1. I have known Ms. Zhiying (Jenny) Mao since early 1989.

2. Ms. Zhiying (Jenny) Mao has been living in a De Facto relationship with a Mr. J. F. Clarke for the majority of time since.

68    That statutory declaration was made by the Deceased in support of the application by the Plaintiff for permanent residency grounded upon the existence of a de facto relationship between the Plaintiff and Mr Clarke.

69    The present assertion of the Plaintiff that she was in a de facto relationship with the Deceased from April 1991 means not only that (as both the Plaintiff and Mr Clarke presently concede) the Plaintiff and Mr Clarke were deliberately lying to the Department of Immigration, but also that the Deceased himself was deliberately lying in his statutory declaration made in August 1991.

70    It will be appreciated that if, in fact, the Plaintiff was, as she now alleges, living in a de facto relationship with the Deceased from April 1991, that fact would have been sufficient to entitle the Plaintiff to permanent residency. There was no reason (if the Plaintiff’s present allegations were true) why the Plaintiff did not amend her application for permanent residency to assert that it was with the Deceased, and not with Mr Clarke, that she was living in a de facto relationship from April 1991. In 1991 neither she, nor Mr Clarke, nor the Deceased said that at that time the Plaintiff and the Deceased were living in a de facto relationship. The Plaintiff and Mr Clarke have attempted to explain away that discrepancy. The Deceased is no longer present to explain his express statement in that regard, which statement is inconsistent with the present assertion of the Plaintiff. I am not prepared to conclude that the Deceased (like the Plaintiff and Mr Clarke) was also a liar.

71    In a letter to Roy Lightfoot on 25 December 1998 the Deceased said of the Raglan Street property, “Two Chinese girls live in it and look after it”. That statement is consistent with statements made by the Deceased to his brother and sister and to Mr Thiele that the Raglan Street property was being looked after by “Chinese girls living in the house at present”. Further, the Deceased made statements on a number of occasions to his sister and to his brother confirming his intentions to reside permanently in Thailand, saying that he wished to spend his retirement in that country, that he preferred the climate of Thailand to that of Sydney, that he found Sydney very expensive to live in, that he proposed to sell the Raglan Street residence when the property market was right, that he had been able to purchase the Pattaya residence at what he described as a “very good” price.

72    The foregoing statements by the Deceased are quite inconsistent with the alleged statements attributed to him by the Plaintiff that the Deceased proposed after retiring from employment to spend six months of each year in Thailand and the other six months of the year at the Raglan Street property.

73    For reasons which I have already expressed concerning the credibility of the Plaintiff, I prefer the evidence of the Deceased’s brother and his sister (an extremely precise witness) and Mr Thiele, all of whom I regarded as reliable witnesses, to that of the Plaintiff concerning statements attributed to the Deceased.

74    There was no reason whatsoever why, if the Deceased was, in fact, living in a de facto relationship with the Plaintiff, he would not have allowed his brother and sister to become aware of that relationship, especially in circumstances where they were aware of so many of the Plaintiff’s other relationships and liaisons. It was her complaint to the Deceased concerning his lifestyle (that he “had so many women all at the same time”) that eventually caused Miss Dale to cease to visit him in Thailand.

75    Neither Mr Colin Dale nor Miss Dale ever heard the Deceased refer to the Plaintiff by name. At no time did the Deceased ever indicate to them that he was living in a de facto relationship with the Plaintiff. This was despite the fact that the Deceased’s social life and his girlfriends were frequent topics of discussion between the Deceased and his brother and sister.

76    Concerning the “Chinese girls” who were looking after the Raglan Street property for him, the Deceased told his brother that the arrangement was that he did not charge them any rent, and that this was in exchange for them looking after the property, but that they had to pay their own bills. (The accuracy of such an arrangement with her was not disputed by the Plaintiff.)

77    Statements of the foregoing nature made by the Deceased, firstly concerning the existence of a de facto relationship between the Plaintiff and Mr Clarke; secondly, concerning the Deceased’s own attitude towards the Plaintiff; and, thirdly, concerning the Deceased’s intentions in regard to his lifestyle, and his future living arrangements, are all totally inconsistent with the existence of a de facto relationship between the Plaintiff and the Deceased.

78    The Plaintiff produced in evidence three photographs of herself and the Deceased, being the only such photographs which she possessed. It might have been thought that if a de facto relationship had existed between herself and the Deceased for a period of almost eight years, the Plaintiff would have possessed more than just three such photographs. The Plaintiff also relied upon gifts of jewellery which she said were made to her by the Deceased. One of those gifts was a ring with red stones in it. The Plaintiff herself appears to have placed little value upon the object itself, or upon the fact that it had been given to her by the Deceased. Similarly, the gift of a bracelet (a souvenir of Trinidad, being one of pair given by the Deceased’s father, the other one having been given to the Deceased’s brother) does not in my view indicate or support any particular degree of intimacy between the Plaintiff and the Deceased.

79    Further, it should be observed that in the various lists of guests whom the Deceased informed Mr Thiele he desired to be invited to the social functions (especially birthday parties) to be held during his visits to Sydney, the name of the Plaintiff rarely appears. Indeed, she did not attend most of those social functions, and was absent from such a significant occasion as the celebration of the fiftieth birthday of the Deceased (although that last event occurred before the Plaintiff entered into residence at Raglan Street).

80    The matters to which I have just referred (photographs, jewellery, social functions do not support the existence of a de facto relationship between the Plaintiff and the Deceased; indeed, the paucity of photographs and the absence of the plaintiff from significant social functions tend to suggest the absence of such a relationship.

81    The Plaintiff did not ever cook for the Deceased during his visits to the Raglan Street property. Neither, despite her assertions, am I satisfied that the Plaintiff and the Deceased ever ate publicly in restaurants together. There was no evidence of any public demonstration of affection between them. They never went on holidays together. The Deceased did not ever offer the Plaintiff a first-class air fare to accompany him to or visit him in Thailand. The evidence discloses no commonality or mutuality of interest between the Plaintiff and the Deceased.

82    Throughout the period of the alleged de facto relationship the Plaintiff was self-supporting, being either in employment or conducting her own business. She maintained her own finances, completely independent of those of the Deceased. She maintained her own health insurance.

83    Even the conduct of the Plaintiff after the death of the Deceased is not consistent with her assertions concerning the nature of her relationship with the Deceased. Although the Plaintiff travelled to Thailand for the Deceased’s obsequies, and although she had before that visit arranged that she should stay in the Deceased’s house at Pattaya, not only did she not stay in the house, but (as I have already recorded) she did not even enter that house. Neither did she introduce herself to or otherwise make herself known to the Deceased’s brother and sister, who were also present at the Deceased’s funeral.

84 It was also part of the case of the Plaintiff that, in the alternative to being the de facto spouse of the Deceased, the Plaintiff was living in what is described as a “close personal relationship” with the Deceased (that phrase being part of the definition of “domestic relationship” which now appears in paragraph (a) of the definition of eligible person). A necessary element in such a relationship as is described in section 5(1)(b) of the Property (relationships) Act is that the parties thereto are “living together”. I consider that that phrase connotes a continuing period of residing together, and that the requirement of “living together” is not fulfilled by occasional and short periods during which the parties are physically located in the same premises. Accordingly, I am not satisfied that the Plaintiff has established that she was living in such a relationship.

85    My foregoing conclusions dispose of the assertions of the Plaintiff that she was a person with whom the Deceased was living in a domestic relationship at the time of his death.

86 However, the Plaintiff further asserts that she is also an eligible person within paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that she asserts that she had been a member of the same household as the Deceased and that she had been partly dependent upon the Deceased.

87    I have already recorded my conclusion that the Plaintiff and the Deceased were not living together in the sense of being co-residents. The fact that over a period of eight and a half years the Plaintiff and the Deceased were both physically together in the Raglan Street property for a total period of about sixty-six days does not in my conclusion necessarily constitute the Plaintiff as having been a member of the same household as the Deceased during those sixty-six days. The concept of being a member of the same household connotes more than a concept of persons being physically together under the same roof for intermittent periods of perhaps a week at a time. (For example, co-residents in a guesthouse would not necessarily be members of the same household.) Membership of a household connotes a degree of continuity and permanency of mutual living arrangements. (See Nagatomi v Hudson (Young J, 18 September 1997, unreported), and the authorities referred to therein, especially Munro v Lake (McLelland J, 8 February 1991, unreported).)

88    The meaning of the phrase “member of a household” has also been considered in Benney v Jones (Young J, 13 February 1990, unreported); Kingsland v McIndoe (1989) VR 273; Maloney v Goodwin (Needham J, 1 August 1989, unreported); Munro v Lake (McLelland J, 8 February 1991, unreported); Wagstaff v Wagstaff (Master Windeyer (as he then was), 6 November 1991, unreported); Markulin v Drew (Young J, 12 August 1993, unreported).

89    Indeed, it is difficult to accept that his fleeting annual visits to Australia had the effect of constituting the Deceased himself as a member of a household located at the Raglan Street property. The impression given by the evidence of such witnesses as Mr Thiele rather suggests that the Deceased on those visits used the Raglan Street house more in the nature of temporary accommodation (almost to be equated to rooms in a motel), rather than anything in the nature of a home. This seems to have been especially so when (as occurred on at least one occasion) the Deceased brought a lady friend with him as a companion from Thailand and the two of them occupied the same bedroom for the period of his visit.

90    To the extent that throughout the last ten years of his life the Deceased was ever a member of a household, that household appears to have been located in Thailand (in his house at Pattaya) and not at the Raglan Street property.

91    Further, the concept of dependency, which is the second limb of paragraph (d) of the definition, conveys an idea of the provision of shelter and sustenance. Throughout the entirety of the period whilst she was residing at Raglan Street the Plaintiff was in employment. Further, she was provided accommodation at Raglan Street in return for services of an administrative and caretaking nature (for example attending to various household bills and accounts, communicating with the Deceased about those bills and about the house itself). The provision of an occasional meal or entertainment for a few days once or, at most, twice a year (even if it be accepted that such were provided) does not in my opinion constitute the provision of sustenance by the Deceased for the Plaintiff.

92    I am not satisfied that the Plaintiff has established that she was a member of the same household as the Deceased, or that she was at any time partly dependent upon the Deceased. It follows therefore that she is not an eligible person within paragraph (d) of the definition.

93 My foregoing conclusion that the Plaintiff is not an eligible person within either paragraph (a) or paragraph (d) of the definition of that phrase contained in section 6(1) of the Family Provision Act means that the Plaintiff does not have the standing to bring the present proceedings. In consequence, therefore, the proceedings must be dismissed.

94    But even if (contrary to the conclusion which I have just expressed) the Plaintiff were able to establish that she is an eligible person within paragraph (d) of the definition, that would not of itself be sufficient to entitle the Plaintiff to the benefit of an order for provision. Section 9(1) of the Act is then brought into operation. That subsection provides,

Where an application is made for an order under section 7 by an eligible person who is such a person by reason only of paragraph (c) or (d) of the definition of eligible person in section 6(1), the Court shall first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors.

95    Some assistance is given concerning the nature of the factors which warrant the making of the application in Re Fulop (1987) 8 NSWLR 679. That decision of McLelland J was approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241, and was quoted with approval by Hope A-JA (with whom the other Judges in the Court of Appeal agreed) in Petrohilos v Hunter (1991) 25 NSWLR 343.

96    Those authorities establish that the factors referred to in section 9(1) are factors which, when added to the facts which render the Plaintiff an eligible person, give to the Plaintiff the status of a person who would generally be regarded as a natural object of testamentary recognition by the Deceased.

97    In the light of my factual findings concerning the role and function of the Plaintiff in and concerning the Raglan Street property, I am not satisfied that there are factors which would give to the Plaintiff the status of a person who would be generally regarded as a natural object of testamentary recognition by the Deceased, especially where (as here) her assertion that she was the de facto spouse of the Deceased has been rejected by the Court. I am not persuaded that, in those circumstances, there are factors which warrant the making by the Plaintiff of her present application. In the absence of such factors, the application, even if the Plaintiff could establish that she is an eligible person within paragraph (d) of the definition, must fail.

98    I consider, nevertheless, that, in the event that (despite my foregoing conclusions) the Plaintiff were to establish that she is an eligible person (within paragraph (a) or within paragraph (d) and, in such latter case, were also to establish the existence of factors of the nature described in section 9 (1)), it is appropriate that I should proceed to a consideration of the claim of the Plaintiff, and especially to a consideration of that claim in the light of any competing claims upon the testamentary bounty of the Deceased.

99    I have already set forth details of the present financial and material circumstances of the Plaintiff. She is in permanent full-time employment as a cashier, having a total weekly net income of $464, and holding investments with a total value of about $75,000. It was submitted by Counsel for the Plaintiff, both at the commencement of the hearing and in his final address, that the Plaintiff should receive a legacy of about $200,000 (perhaps somewhat more), such legacy being (so it was submitted) in an amount sufficient to enable the Plaintiff, firstly, to purchase a home unit, and, secondly, to acquire furniture and furnishings. It will be appreciated that the Plaintiff, although she has remained in residence in the Raglan Street property since the death of the Deceased has no legal right or entitlement to do so. That fact is implicitly recognised by the Plaintiff in her claim to receive from the estate a legacy which would enable her to acquire some alternative accommodation.

100    It was submitted that the Plaintiff had the capacity to borrow, by way of a housing loan secured by mortgage, an amount of about $91,000 to about $94,000, that there were home units of the nature desired by the Plaintiff available for purchase in the range $275,000 - $280,000, and that stamp duty and associated legal costs would total about $12,000. In addition, the cost of the furniture and furnishings desired by the Plaintiff were, so it was submitted, in amounts totalling about $10,000. It was submitted that she should receive a further sum to provide for future contingencies. The submissions of Counsel in this regard also recognised that there should be no duplication of the benefit which the Plaintiff might ultimately receive from the superannuation entitlement of the Deceased, and it was also recognised that, in approaching any quantification of the Plaintiff’s claim, she has had the benefit of residing in the Raglan Street property since the date of the death of the Deceased to the present time (and has even received income from letting out part of that property).

101    The only other persons who have competing claims upon the testamentary bounty of the Deceased are the brother and the sister of the Deceased, being Colin Richard Kay Dale and Susan Margaret Sonia Dale. Those claims were fully recognised by the Deceased himself, by the terms of his will. It will be appreciated that neither of those persons is an eligible person in relation to the Deceased. Nevertheless, they are the two chosen objects of the testamentary beneficence of the Deceased, to whom he, in the exercise of his freedom of testamentary disposition, chose to leave the entirety of his not insubstantial estate.

102    It is not necessary for Mr Dale or Miss Dale to prove anything, since they are the two persons whom the Deceased himself considered should receive the entirety of his estate. It is for the Plaintiff to establish her entitlement. It is not for the beneficiaries to justify their entitlements. Nevertheless, each of those beneficiaries asserts a competing claim upon the testamentary bounty of the Deceased, and asserts that the respective financial and material circumstances of each such beneficiary are such as would have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the Plaintiff might otherwise establish.

103    The evidence discloses that the Deceased had a close and affectionate relationship with each of his brother and his sister. They visited him in Australia on a number of occasions (in the 1980s) and in Thailand on a number of occasions (in the 1990s). Even after the Plaintiff’s sister chose not to continue visiting her brother in Thailand after 1992 (on account of her views concerning the nature of his lifestyle - she did not approve of the way he had so many women all at the same time), she and her brother Colin continued to maintain regular and affectionate contact with the Deceased by letter and by telephone, and Mr Colin Dale continued to visit the Deceased in Thailand, last staying with him in 1997.

104    Mr Colin Dale was born on 25 January 1942 and is presently fifty-nine years of age. He married in about 1967 and was divorced in 1969. He has one child, who is no longer dependent upon him. Mr Dale is employed by the Ministry of Defence of the United Kingdom as a security guard and earns between £12,000 and £14,000 (gross) a year. He shares a two bedroom bungalow with a lady friend, that accommodation being provided by the local council in Shopshire in England. His companion receives a small widow’s pension of £47 a week, and has no other income or assets. She is sixty-two years of age, suffers very serious health problems, and is financially dependent upon Mr Dale. He has about £2,000 in savings, and has no other assets. The entirety of his income is expended on current living expenses.

105    Miss Susan Dale was born on 10 July 1943 and is fifty-seven years of age. She had never married and has no children. Miss Dale is employed as a care manager in a residential aged care facility. She has worked as a carer for about thirty years, and has been in her present employment for the past three years. She holds a Certificate in Social Services from the Birmingham Technology College in England.

106    Miss Dale’s present income is £15,000 a year, that income including about £600 a month by way of a pension which she receives from the British Department of Social Services. Miss Dale was employed by that Department until 1995 when she was made redundant. She received a lump sum payment of £15,000, and continues to receive the foregoing pension. Miss Dale owns the house in which she presently resides in Shopshire. That house, which is a semi-detached residence, is worth about £60,000, and is subject to a mortgage of £20,000 repayable over twenty-five years. Miss Dale resides alone in that house property, which she purchased in about 1982. She has no dependents. Apart from the house property Miss Dale has an investment fund worth about £4,000 and savings of about £10,000. She owns a Toyota motor vehicle which is about four years old, and to which she attributes a present value of about £12,000. She has no other assets or income.

107    It is a fair summary of the financial and material circumstances of each of Mr Dale and Miss Dale to say that each is far from affluent, especially Mr Dale.

108    I am satisfied that, even if (contrary to my foregoing conclusions) the Plaintiff were to be regarded as an eligible person in relation to the Deceased and even if she had otherwise established an entitlement to an order for provision out of the estate, nevertheless, each of Mr Colin Dale and Miss Susan Dale should receive out of the estate of the Deceased a benefit in a very substantial monetary sum. That for Mr Dale should be sufficient to allow him to acquire a house property of his own, and to provide him with a fund to enhance his present very frugal lifestyle, and to provide for future contingencies. That for Miss Dale should be sufficient to allow her to pay off the mortgage outstanding on her house property (if she desires to remain there), or to upgrade her residence, and to provide her with a fund to enhance her present modest lifestyle, and to provide for future contingencies.

109    I consider it to be relevant not only to the entitlement to but also to the amount of any order for provision which might be made in favour of the Plaintiff, that the Plaintiff was only one of what appears to be have been a considerable number of ladies with whom the Deceased was involved, at least throughout the period whilst he was residing and working in Thailand. As I have already recorded, on at least one occasion he even brought one of those ladies with him to Australia (on his annual visit in December 1998). Even on the visits when he was not so accompanied, the Plaintiff was not the only lady with whom the Deceased indulged in sexual activities.

110    However, as I have already indicated, even if (contrary to my conclusion in that regard) the Plaintiff were held to be an eligible person, I am not satisfied that she has established an entitlement to any order for provision out of the estate of the Deceased.

111    On 7 December 1999 (pursuant to an order made by consent on 22 November 1999 granting leave in that regard) the Defendant filed a cross-claim, naming the Plaintiff as cross-defendant. By that cross-claim the Defendant seeks an order for vacant provision of the Raglan Street property and orders that the Defendant receive possession of that property and be given leave to issue a writ of possession forthwith. In addition, the Defendant claims mesne profits and damages.

112    A notice of claim for possession was served upon the occupiers of the Raglan Street property on 5 March 2000, at the same time as the service of the cross-claim was effected. Any implied licence which might have allowed the Plaintiff to remain in possession of the property after the date of the death of the Deceased (and I am in no way satisfied that there was such an implied licence) was determined by the service of the notice of claim for possession.

113    It will be appreciated that the Plaintiff, contrary to the wishes of the Defendant, has remained in residence of the Raglan Street property ever since the death of the Deceased. By doing so she has prevented the estate from having access to and from dealing with (whether by sale or by distribution in specie to the beneficiaries) the most substantial asset in the estate of the Deceased.

114    It is abundantly obvious that the Plaintiff has no legal entitlement to remain in possession of the Raglan Street property, and that the Defendant as executor is entitled to possession thereof. In consequence, therefore, the Defendant is entitled to the relief sought in prayers 1, 2 and 3 in the cross-claim.

115    By the Plaintiff’s conduct in remaining in possession of property to which since the death of the Deceased she has no entitlement (for, even if the Plaintiff were to establish an entitlement to provision out of the estate of the Deceased, that entitlement would not necessarily result in her receiving, either absolutely or in a lesser interest, the Raglan Street property) the estate has been deprived of income which it could have received from renting out that property, or has been deprived of income which it could have received by the sale of the property and the investment of the proceeds of sale pending the hearing of the present proceedings. There was evidence as to the rental value of the Raglan Street property (unfurnished), being in an amount of $450 a week as at February 1999 and $500 a week as at February 2000.

116    I am satisfied that the Defendant is entitled to mesne profits, and I propose to make an order in that regard, providing for the assessment of such mesne profits.

117    No evidence has been placed before the Court which would entitle the Defendant to damages (as distinct from mesne profits), and it is my understanding that the Defendant does not seek to pursue his claim for that relief.

118    Accordingly, I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the Plaintiff deliver up to the Defendant possession of the house property situate at and known as 215 Raglan Street, Mosman (being the whole of the land in Folio Identifier 1/9225334).

(3). I order that leave be and hereby is granted to the Defendant to issue forthwith a writ of possession in respect to the aforesaid property.

(4). I order that the Plaintiff pay to the Defendant mesne profits in an amount to be assessed.

(5). I reserve to the Defendant liberty to apply in respect to the assessment of the mesne profits to be paid by the Plaintiff to the Defendant.

(6). I order that the Plaintiff pay the costs of the Defendant of the proceedings and the costs to date of the cross-claim filed by the Defendant, such costs to be on the party and party basis.

(7). I order that the difference between the amount of the costs of the Defendant referred to in order 6 hereof which he may recover from the Plaintiff and the amount of the costs of the Defendant of the proceedings and the costs to date of the cross-claim filed by the Defendant, both such latter costs being on the indemnity basis, be paid out of the estate of the late Michael Alan Tytherleigh Dale (“the Deceased”) to the Defendant.

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Last Modified: 05/25/2001