Marinis v Jeweller

[2000] NSWSC 135

CITATION:	Marinis v Jeweller [2000] NSWSC 135
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 4632/98
HEARING DATE(S):	22, 23, 24, 25 and 26 November 1999
JUDGMENT DATE:	9 March 2000
PARTIES :	Antonios Marinis (P) John Jeweller (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. J. R. Wilson (P) Mrs. M. Gilmour (D)
SOLICITORS:	Slattery Thompson (P) Jeweller Peetz (D)
CATCHWORDS:	Family provision - Plaintiff claims to be de facto widower of deceased - Defendant disputes status of plaintiff and asserts that he was merely a lodger in deceased's apartment - Plaintiff and deceased resided together for thirty-seven years - Deceased was thirty-one years older than plaintiff - Nature of domestic arrangements between plaintiff and deceased - Whether they had a sexual relationship - Parties jointly purchased an investment apartment in Athens - Plaintiff retired from employment when aged forty-eight - Manner in which plaintiff managed household, and cared for deceased in her declining years - Plaintiff attended to deceased's banking - Plaintiff was appointed executor of deceased's will - Status of plaintiff as de facto widower of deceased is not determinative of plaintiff's claim - Financial and material circumstances of plaintiff - Present assets of plaintiff total $890,000 - Whether plaintiff has been left without adequate provision for his proper maintenance - Competing claims of residuary beneficiaries - Proceedings under Family Provision Act are not an appropriate vehicle by which to resolve disputed questions concerning the existence or non-existence of additional assets in the estate or concerning the conduct of the plaintiff in the course of his administration of the estate.
LEGISLATION CITED:	Family Provision Act 1982 De Facto Relationships Act 1984 Property (Relationships) Act 1984
CASES CITED:	Roy v Sturgeon (1986) 11 NSWLR 454
DECISION:	See paragraph 83.

- 26 -

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 9 March 2000

4632/98 ANTONIOS MARINIS -v- JOHN JEWELLER

JUDGMENT

1    MASTER: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 12 November 1998 the plaintiff Antonios Marinis seeks an order for provision, pursuant to section 7 of the Family Provision Act, out of the estate of the late Filitsa Xanthopoulos (to whom I shall refer as “the deceased”). 3    The plaintiff asserted that he was the de facto widower of the deceased. That assertion was strongly disputed by the defendant. 4    The deceased died on 20 September 1997. Although there was, at the outset, some degree of uncertainty concerning the age of the deceased, I am satisfied that the document dated 17 January 1930 (Exhibit 10) establishes that the deceased was born in 1904, and that, in consequence, she was aged about ninety-three at the time of her death on 20 September 1997. The deceased was born in Smyrna in what was then the Ottoman Empire. She had subsequently lived in Egypt and, later, in Greece. The deceased and her husband, Panayotis (known as Panos) Xanthopoulos, whom she married in Egypt in 1949, came to Australia in 1958. They subsequently resided at 10 Onslow Avenue, Elizabeth Bay. The deceased had no children. 5    The deceased left a will dated 24 March 1965, probate whereof was on 2 March 1998 granted to the plaintiff, who was the executor named in that will. (In consequence, the summons did not name a defendant; subsequently, by order made by consent on 17 December 1998, John Jeweller was appointed as defendant to the proceedings.) 6    By her will the deceased gave to the plaintiff a gift of $1,000 (it will be appreciated that the amounts in the will were expressed in pre-decimal currency), and a further sum of $1,200 for the erection of a suitably inscribed headstone. The deceased gave “the rest and residue of my said estate situated within the Commonwealth of Australia” to her brother George Sclavis and “as to any estate within the Kingdom of Greece” to which the deceased might be possessed or entitled at the time of her death, to her niece Alexandra Sclavis. The will further provided that, in the event (as in fact happened) that her brother pre-deceased her, his share should be divided between Alexandra Sclavis and Dimitrios Sclavis (the son of George Sclavis) in equal shares as tenants in common absolutely. (The names of those residuary beneficiaries are thus spelt in the will: in their affidavit and oral evidence the former spelt her surname Sklavi and the latter his surname Sklavis.) 7    At the time of her death the deceased owned the following assets:

An apartment situate at and known as 10/136 Darlinghurst Road, Darlinghurst, (to which, in the Inventory of Property, an estimated value of $180,000 was ascribed);
An interest in an apartment in Athens (to which interest an estimated value of $75,000 was ascribed);
Moneys in the Colonial State Bank, $1,512.

8 In addition, the deceased owned items of jewellery and other chattels, which were not included in the inventory of property, but concerning which the plaintiff was cross-examined. 9 It should also here be recorded, for completeness, that although by her will the deceased gave to the plaintiff the sum of $1,200 for the erection of a suitably inscribed headstone, the plaintiff, in fact, expended more than $8,000 for that purpose, explaining that the amount of $1,200 was totally inadequate. 10 The plaintiff was born on 17 January 1935 in Greece, and is presently sixty-four years of age. He came to Australia in 1956, when he was aged twenty-one. In 1960 the plaintiff entered into residence as a lodger with the deceased in her apartment at 136 Darlinghurst Road, Darlinghurst, for a period of three months. The deceased was at that time a widow, her husband having died on 18 May 1960. The plaintiff had in contemplation thereafter taking employment in Melbourne. However, according to the plaintiff, the deceased persuaded him to remain in her residence. At that time, according to the plaintiff, he entered into a de facto relationship with the deceased, which continued from then until her death some thirty-seven years later. At the time of the commencement of the relationship the plaintiff was aged twenty-five and the deceased was aged fifty-six. There was thus an age difference of thirty-one years between the plaintiff and the deceased. Throughout the entirety of the period from the time that the plaintiff entered into residence with the deceased in 1960 until the death of the deceased in September 1997, the parties resided together in Unit 10, 136 Darlinghurst Road, Darlinghurst. 11 Throughout that period there obtained a relationship between the parties, but the nature and the character of that relationship were, as I have already observed, in considerable dispute between the plaintiff on the one hand and the defendant and the niece and the nephew of the deceased on the other hand. 12 During the course of the relationship the plaintiff engaged in a number of real property transactions. In 1963 he purchased Unit 16, 31-33 Elizabeth Bay Road, Elizabeth Bay, being a home unit adjacent to a home unit already owned by the deceased in the same building. In January 1979, each of the plaintiff and the deceased sold their respective properties at Elizabeth Bay (the plaintiff receiving a net amount of $18,825). In the meantime, the plaintiff had in April 1974 purchased a residential property at 23 The Boulevarde, Lewisham, which property he still retains. The purchase price of that property was $44,950, which was funded by $20,000 borrowed on first mortgage from the ANZ Bank, and a second mortgage in an amount of $3,500, the balance being provided from the plaintiff’s own savings. Those mortgages were discharged by July 1984. 13 In 1979 the plaintiff and the deceased conjointly purchased an apartment in Athens, being Flat B/1 46 Dralli Street, Amarousion. That apartment was still owned by them at the time of the death of the deceased (and her interest in which constitutes an asset in the estate of the deceased). In the following year, 1980, the plaintiff purchased as an investment Unit 9, 136 Darlinghurst Road, Darlinghurst, that being an apartment which adjoins Unit 10. The purchase price of Unit 9 was $69,000. That purchase was funded by the proceeds which the plaintiff had received from the sale of the Elizabeth Bay unit, together with a mortgage loan. By 1984 the plaintiff had repaid that mortgage loan from what he described as his “superannuation redundancy”. 14 According to the plaintiff, the apartment in Athens, which was located in what the plaintiff described as a very nice part of Athens, was purchased (for the equivalent of $42,000) with funds provided by each of the plaintiff and the deceased, the plaintiff’s funds coming from savings which he had accumulated from his earnings since the time when he arrived in Australia. The plaintiff said that the deceased contributed about $16,800 towards that purchase, whilst the plaintiff provided the balance of the purchase price and paid all expenses associated with the acquisition of the property. 15 An attempt was made on the part of the defendant to establish that the funds used for the purpose of the purchase of the Athens apartment came entirely from the deceased. In that regard the plaintiff was cross-examined concerning various bank accounts which he maintained in Athens, two of which were opened in 1979 at about the time of the purchase of the Athens apartment. 16 I am not satisfied that the defendant has established that the purchase price of the Athens apartment was funded other than by contributions made by each of the plaintiff and the deceased. 17 It is appropriate here to record that during the course of the hearing Counsel for the defendant expressly abandoned the assertion, earlier made, that the interest of the plaintiff in the Athens apartment was held on a constructive trust for the deceased. It was on account of the possibility that relief in respect to such a trust might be ultimately sought or obtained that Justice Bergin, at the request of the parties, made orders on 23 November 1999 empowering me to grant all such remedies (and make any declaration or order in relation to the granting of such remedies) as to which any party might appear to be entitled. 18 The plaintiff was in employment (firstly as a fitter) from the time when he met the deceased in 1960 until 7 February 1983, when, at the age of 48, he took a redundancy package from his employment as a foreman in the canning department of Waverley Brewery (where he had worked since 1972). Thereafter, the plaintiff, according to him, devoted the entirety of his life to looking after and caring for the deceased. As will later appear, there was considerable dispute between the plaintiff on the one hand and the defendant and the residuary beneficiaries on the other hand concerning the manner in which the plaintiff performed that role. 19 The plaintiff did not pay any rent or occupation fee to the defendant throughout the period whilst he was residing in Unit 10 (apart from the initial period of three months in 1960). However, it was the evidence of the plaintiff that he contributed from his wages and, subsequently, his rental income to the living expenses of the household. From 1964 until her death the deceased was in receipt of a pension. According to the plaintiff she paid domestic expenses from that pension, as well as any mortgage payments on Unit 10. The plaintiff said that the deceased also sent money to her relatives in Greece, and that in 1975 when she went to Greece for three months on a visit to her family, the plaintiff assisted her with a gift of $600 towards her airfares. 20 At the outset it is necessary for me to decide the disputed question of the status of the plaintiff as the de facto spouse of the deceased. Unless the plaintiff can establish that he is an eligible person in relation to the deceased, then he does not have the standing to bring the present proceedings. 21 The plaintiff asserts primarily that he is an eligible person within paragraph (a) of the definition of that phrase contained in section 6(1) of the Family Provision Act, in that he was during her lifetime and at the time of her death the de facto husband of the deceased. In the alternative, he asserts that he is an eligible person within paragraph (d) of that definition, in that he was a person who was a member of the same household as the deceased, and was totally or partly dependent upon the deceased. 22 According to the plaintiff, throughout the period of thirty-seven years during which they lived together, they had a sexual relationship, and there existed a loving and committed relationship between them. The niece and nephew of the deceased gave evidence very different from that of the plaintiff concerning the nature of the relationship between the plaintiff and the deceased. Each of Mrs Alexandra Sclavis and Mr Dimitrios Sclavis had, at different times, for a period resided in the same home unit (Unit 10, 136 Darlinghurst Road), with the plaintiff and the deceased, and each gave evidence of her or his personal observations concerning the nature of the relationship between the plaintiff and the deceased. The niece and nephew each asserted that the relationship was no more than that of a much younger lodger and his elderly landlady. 23 Although there was an age difference of thirty-one years between the plaintiff and the deceased, that fact, of itself would not necessarily preclude the plaintiff and the deceased from being in a de facto relationship. According to the plaintiff, the deceased did not desire other people to know that she was having a sexual relationship with the plaintiff. The deceased appears to have regularly introduced the plaintiff as her nephew, conduct which is consistent with the foregoing assertion by the plaintiff. The plaintiff himself addressed the deceased in a somewhat formal fashion, as “Madame Filitsa”. 24 The phrase “eligible person” is defined in section 6(1) of the Family Provision Act, relevantly, as being, a person who --- where the deceased person was a woman, was a man who, at the time of her death, was living with the deceased person as her husband on a bona fide domestic basis. 25 In respect to the equivalent (and almost identical) definition of a de facto partner contained in section 3(1) of the De Facto Relationships Act 1984 (now, the Property (Relationships) Act 1984) it was held by Powell J (as he then was) in Roy v Sturgeon (1986) 11 NSWLR 454 that the Court is required to make, in each case, a value judgment, having regard to the variety of factors relating to the particular relationship, including, but not limited to, the following:

(a) the duration of the relationship;

(b) the nature and extent of the common residence;

(c) whether or not a sexual relationship existed;

(d) the degree of financial interdependence, and any arrangements for support, between or by the parties;

(e) the ownership, use and acquisition of property;

(f) the procreation of children;

(g) the care and support of children;

(h) the performance of household duties;

(i) the degree of mutual commitment and mutual support;

(j) reputation and “public” aspects of the relationship

26 Some of the foregoing factors, such as those relating to children, are not relevant to the instant case. The relationship between the plaintiff and the deceased (whatever may have been the precise character of that relationship) obtained over a period of thirty-seven years. Throughout the entirety of that period the plaintiff and the deceased occupied the same residence. 27 Whether or not a sexual relationship existed between the plaintiff and the deceased is a matter concerning which only two people have had direct knowledge. By the very nature of the present proceedings one of those persons is not available to give her version. There was a considerable quantity of evidence placed before the Court by the plaintiff on the one hand and by Mrs Alexandra Sclavis and Mr Dimitrios Sclavis on the other hand concerning the precise sleeping arrangements in the Darlinghurst apartment. 28 I am satisfied, on the balance of probabilities, that there was a sexual relationship between the plaintiff and the deceased of the nature described by the plaintiff, but that that relationship was one which the deceased (presumably on account of the very considerable age difference between herself and the plaintiff) did not wish to be generally known. The fact that the deceased’s kinsfolk did not observe any form of sexual activity --- or, indeed, physical contact --- between the deceased and the plaintiff, is not, of course, determinative of the existence of such activity, in circumstances where it is understandable that the parties did not wish other persons to be aware of the nature of their physical relationship. 29 I have already referred to the fact that the plaintiff and the deceased jointly acquired, with funds contributed by each of them, an apartment in Athens. Although, according to the plaintiff, the original intention of himself and the deceased was that the Athens apartment should be acquired so that they could holiday there, it does not appear that the apartment was ever used for that purpose. It would appear that it has been treated as an investment property available for rental almost since its acquisition. The plaintiff’s brother in Athens performs a supervisory role in respect to the apartment and its renting. 30 The age of the deceased precluded children from being a relevant factor in her relationship with the plaintiff. 31 There was considerable dispute between the plaintiff on the one hand and the kinsfolk of the deceased on the other hand concerning the efficiency of the plaintiff in the performance of household duties (especially regarding his standards of domestic tidiness) and concerning the manner in which he looked after and cared for the deceased in the later years of her life, especially when she was no longer able to walk and care for herself. Not only was evidence concerning these matters given by Mr Dimitrios Sclavis and Mrs Alexandra Sclavis (each of whom had travelled from Athens in order to be cross-examined on their respective affidavits), but affidavit evidence was also given by Miss Emmanuela Sclavis, a daughter of Mr Dimitrios Sclavis by his first marriage, concerning telephonic communications, and attempted communications, between herself and the deceased when her employment as an air hostess brought her to Melbourne in the early and mid-1990s and to Sydney in 1997. Miss Sclavis was not required for cross-examination. 32 In regard to the care by the plaintiff for the deceased there were tendered in evidence a considerable number of photographs, many of which had been taken by the plaintiff himself (some with a video camera), depicting the deceased (sometimes with the plaintiff) in such intimate activities as toileting and bathing and being fed by the plaintiff. On account of the infirmity and the weight of the deceased the plaintiff had arranged a form of harness and hoist to assist him in helping the deceased in the foregoing activities. There were also photographs of the deceased on her deathbed and, shortly after her death, in her coffin. 33 Whatever might be thought concerning the conduct of the plaintiff in taking the foregoing photographs or concerning whether such photographs breached the canons of delicacy and good taste appropriate to such intimate activities and to such occasions, there is no doubt that when the deceased in her later years could not walk, was suffering from dementia and was physically unable to care for herself, when she had difficulty in bathing, when she became incontinent, when she was unable to feed herself, it was the plaintiff who discharged and attended to all her personal and intimate requirements. This state of affairs continued until the deceased was admitted to St Vincent’s Hospital about five days before her death. 34 There is no evidence to support the suggestion that the deceased was dissatisfied with the manner in which the plaintiff looked after her and attended to her requirements, in the fashion which I have described. Neither did any of the medical reports concerning the deceased which were admitted into evidence express any dissatisfaction with the care and attention given to her by the plaintiff. 35 Whether or not the plaintiff (as it was asserted on behalf of the defendant) at times treated the deceased with a lack of patience and a lack of the respect due to a lady of her advanced years, I have no doubt that there was a considerable degree of mutual commitment and mutual support between the plaintiff and the deceased throughout the entirety of the period whilst they were living together. 36 It is obvious that the deceased did not wish it to be widely known, and especially that it should not be known amongst her kinsfolk, that she was having an affair with a man who was more than thirty years her junior. For that reason there was little in the nature of a reputation or a public aspect of the relationship supporting the existence of a de facto relationship between the plaintiff and the deceased. Nevertheless, there was evidence from Miss Zhelma McCumstie, a neighbour who from 1979 resided in the same building, but on another floor, and who had frequent converse with the deceased in the absence of the plaintiff, that the deceased had revealed to her that the deceased and the plaintiff were in a physical relationship. The evidence of Mr Gerasimos Zapantis (which was given through an interpreter) is also consistent with the existence of a close and affectionate relationship. 37 Despite the submission on behalf of the defendant that Mrs McCumstie was deliberately lying, I do not consider that there is any ground for such a conclusion. Miss McCumstie appears to have been a good friend to both the deceased and the plaintiff, especially in the period after July 1984 (when Miss McCumstie retired from employment) until the death of the deceased. She and the deceased were in the habit of seeing each other at least once a week. Until the last few years of her life, when the deceased was unable to leave her apartment, it was their practice for Miss McCumstie and the deceased to visit each other for coffee, usually on a Sunday morning. As the deceased become increasingly infirm, she no longer visited Miss McCumstie, who however continued to call regularly upon the deceased. 38 I considered Miss McCumstie to be a witness of truth. Her evidence supported the assertions of the plaintiff concerning the nature of his relationship with the deceased. I do not find it sinister or improper that the plaintiff and Mrs McCumstie travelled together to Court during the hearing and spoke together during adjournments but before oral evidence was presented. After all, they resided in the same building. 39 In denying the assertion of the plaintiff that he was the de facto spouse of the deceased the defendant not only relied upon the observations to which I have already referred concerning the sleeping arrangements in the Darlinghurst unit which were made by Mr Dimitrios Sclavis and Mrs Alexandra Sclavis. The defendant also pointed to the fact that the deceased habitually introduced the plaintiff as her nephew, and that the plaintiff even on oath (in his application for a grant of probate of her will) thus described himself. Further, in her dealings with her long-time medical advisor, Dr John Alam, the deceased was accustomed to refer to the plaintiff as her nephew. (I would in this regard point to the fact that neither party saw fit to call Dr Alam to give evidence, even though it would appear that subpoenas had been addressed to him, and that there had been considerable correspondence passing between Dr Alam and the solicitors for at least one of the parties. Neither was evidence given by any other doctor who had attended the deceased, although a number of medical reports relating to the deceased were admitted into evidence.) 40 Further, the defendant pointed to the fact that the plaintiff did not ever in his income tax returns suggest that he had a de facto partner or that the deceased was such a partner. 41 But, whatever else the plaintiff might have been to the deceased, he certainly was not merely a lodger, as asserted by the defendant. 42 The fact that only five years after meeting him the deceased felt sufficient reliance upon the plaintiff to appoint him as her executor, in March 1965, and the fact that some fourteen years later, in 1979, the parties conjointly purchased the apartment in Athens, are actions which satisfy me that the deceased regarded the plaintiff as someone very different from being merely a youthful lodger in her apartment. Similarly, the deceased and the plaintiff for many years jointly maintained a safety deposit box, which since the death of the deceased has continued to be maintained by the plaintiff alone. 43 In resisting the assertion of the plaintiff that he was the de facto spouse of the deceased, the defendant also pointed to the fact that until the institution of the present proceedings, some fourteen months after the death of the deceased, there was never any suggestion made on behalf of the plaintiff that he was the de facto spouse of the deceased. Further, until the filing of the affidavit of Mr Zapantis on 29 October 1999 and, more importantly, the affidavit of Miss McCumstie on 2 November 1999, this allegation of the plaintiff was totally unsupported by any other evidence. 44 The defendant submitted that what was described by him as the plaintiff’s late allegation of a de facto relationship should be approached with great caution, particularly against the background of his actions on 15, 16 and 19 September 1997 (in the week preceding the death of the deceased) in withdrawing moneys from the deceased’s account at a time when, so it was submitted, he might be expected to have been totally pre-occupied with the deceased’s medical condition; and, further, against the background of his attempts to obtain from the deceased a power of attorney in June 1997, and again on 18 September 1997, only two days before her death. 45 The defendant also relied upon an asserted absence of photographs depicting himself and the deceased together, and his inability to produce any personal document addressed to himself and the deceased by any person or entity who regarded them as a couple (for example, invitations, seasonal cards, birthday cards, or the like). Despite the foregoing assertion on behalf of the defendant concerning the absence of photographs, there were, in fact, a number of photographs included in Exhibit 6 which showed the plaintiff and the deceased together on social occasions. 46 The defendant also pointed to the fact that the plaintiff and the deceased appeared never to have gone on holidays together. The deceased went on a holiday to Greece in 1975. The plaintiff visited Greece on a number of occasions after that date, but they never travelled together to Greece, or to anywhere else. 47 I am satisfied that for a period of thirty-seven years the plaintiff and the deceased resided in the deceased’s apartment at Darlinghurst where they maintained a joint domestic establishment, that they had a sexual relationship throughout that period, that there existed a very considerable degree of mutual commitment and mutual support between them, that they acquired together an investment property in Athens, and that throughout the latter part of the deceased’s life she relied upon the plaintiff for all physical care and support. 48 I am satisfied that the plaintiff was the de facto spouse of the deceased at the time of her death. It follows, therefore, that he is an eligible person in relation to the deceased, within paragraph (a)(iii) of the definition of that phrase contained in section 6(1) of the Family Provision Act. As such he has the standing to bring the present proceedings. 49    In the light of the conclusion which I have just expressed, that the plaintiff is an eligible person within paragraph (a)(iii), it is unnecessary for me to arrive at any concluded decision concerning the status of the plaintiff as an eligible person within paragraph (d) of that definition. My preliminary view, however, in that regard is that the plaintiff also comes within paragraph (d), in that for a period of thirty-seven years he was a member of the same household as the deceased, and that throughout almost the entirety of that period he was partly dependant upon the deceased, to the extent that she did not charge him for accommodation. 50    Apart from the plaintiff there is no other eligible person in relation to the deceased. Neither Mr Dimitrios Sclavis nor Mrs Alexandra Sclavis is an eligible person. 51    However, the fact that the plaintiff is an eligible person is not of itself determinative of his present claim for an order for provision for his maintenance out of the estate of the deceased. 52    At the outset of the hearing it was noted that it had been agreed between the parties that the present values of the Darlinghurst unit, the Athens apartment and the investment property of the plaintiff were as follows:

Unit 10, 136 Darlinghurst Road, Darlinghurst --- $210,000
Athens apartment --- $170,000
23 The Boulevarde, Lewisham --- $550,000

53    It follows, therefore, that the assets of the estate have a present value totalling a little over $295,000 (Unit 10 --- $210,000; half interest in Athens apartment --- $85,000; moneys in the Colonial State Bank --- $1,512). 54    However, it must be appreciated that the costs of the defendant will be payable out of the assets of the estate and, in the event that he be successful in his claim, the costs of the plaintiff will also be paid out of the assets of the estate. Each of the solicitors filed an affidavit relating to the costs of his respective client. The solicitor for the plaintiff estimated that the total costs of the proceedings for the plaintiff, upon the assumption that the hearing occupied only two days, would be in an amount of $35,000. The solicitor for the defendant estimated the total costs for his client for a similar hearing to be almost $54,000 (that amount including travel expenses for the residuary beneficiaries in an amount totalling almost $6,000, and costs relating to an interpreter and a translator). In the event, the hearing occupied four and half days. Thus the costs estimated in the affidavits of the respective solicitors, totalling $89,000, will probably increase to amounts totalling more than $100,000. 55    It was recognised by both parties that it was inevitable that the Athens apartment would need to be sold in order to meet the foregoing costs. 56    Concerning the assets of the estate, it should here be recorded that the plaintiff was cross-examined about various icons which the residuary beneficiaries asserted were owned by the deceased at the time of her death. The plaintiff said that a number of icons had been given to him by the deceased during her lifetime. The plaintiff was also cross-examined about jewellery of the deceased, with a view to establishing (as I understand it) that the plaintiff had retained for himself valuable items of jewellery which he had not disclosed in the inventory of property. 57    It should be emphasised that the present proceedings, being a claim for provision for maintenance under the Family Provision Act, are not an appropriate vehicle by which to resolve disputed questions concerning the existence or non-existence of additional assets in the estate or concerning the conduct of the plaintiff in the course of his administration of the estate. 58 If the residuary beneficiaries are dissatisfied with the administration of the estate by the plaintiff, and especially if they consider that in the course of that administration he has not distributed assets in accordance with the terms of the will, that dissatisfaction cannot be redressed in the present proceedings. A suit for the general administration of the estate or proceedings of the nature contemplated by Part 68 rule 2 of the Supreme Court Rules may be available to the residuary beneficiaries. 59 The present assets of the plaintiff include Unit 9, 136 Darlinghurst Road, Darlinghurst, which adjoins the apartment in which the plaintiff resided with the deceased. It was conceded on the part of the plaintiff that Unit 9 had an equivalent value to that of Unit 10; that is, that Unit 9 has a present value of $210,000. In addition, the plaintiff has money in Greek bank accounts totalling $32,000, a term deposit with the St George Bank in an amount of $8,482, an amount of $3,447 in his cheque account with the St George Bank, and cash of $1,000. 60 The assets of the plaintiff, therefore, have a present value totalling $890,000 (Unit 9 --- $210,000; 23 The Boulevarde, Lewisham --- $550,000; half interest in Athens apartment --- $85,000; moneys in bank accounts and on deposit and in cash --- $45,000). 61 The plaintiff has no liabilities. 62 For the year ended 30 June 1998 the plaintiff’s taxable income was $24,112, upon which the tax assessed was $4,582. 63 The apartment in Athens is presently leased. The rents received from the apartment are paid into a bank account in Greece. The plaintiff and the estate of the deceased are conjointly entitled to the moneys representing the accrued rents. 64 Since the death of the deceased the plaintiff has remained in residence in Unit 10. He has not made any payment to the estate in respect of that residence, which has continued for the past two and a half years. It would also appear that, since (as I understand it) Unit 10 is still registered in the name of the deceased, there are certain advantages in respect to outgoings which the plaintiff receives by virtue of the fact that the deceased was a pensioner. It has been calculated on the part of the defendant that the benefit to the plaintiff in having rent-free accommodation since the death of the deceased could conservatively be valued at about $30,000. It is appropriate here also to refer to the submission of the defendant that during the course of the relationship the financial position of the plaintiff improved, whilst that of the deceased deteriorated. The evidence certainly supports such a conclusion. 65 The present income of the plaintiff (apart from his share of the rents from the Athens apartment) totals $665 a week, and consists of:

Rent of Unit 9, 136 Darlinghurst Road, Darlinghurst --- $280 a week
Rent of 23 The Boulevarde, Lewisham --- $385 a week

66    It was submitted on behalf of the plaintiff that, in addition to the legacy given to him by the will of the deceased, he should also receive Unit 10. It was submitted that otherwise he would be left without a home, and that he should not be required to give up what has been his home for almost forty years. Further, that if he had to leave Unit 10, and if he had then to reside in Unit 9, he would lose the benefit of the income which he receives by way of rent for that latter apartment, in an amount of $280 a week. 67    It seems to me, however, that there is something strange, illogical, and even unreal, in a person who has assets totalling in value almost $900,000 claiming that he has been left without adequate provision, to the extent that he must receive a further asset (being Unit 10) having a value of $210,000. That would mean that, in the event that the plaintiff were successful in his claim, he would then have assets totalling well in excess of $1,100,000. It is all very well for Counsel for the plaintiff to say that if it became necessary for the plaintiff (as was suggested on behalf of the defendant) to move into Unit 9, his income would be significantly reduced. But, if the plaintiff, in such circumstances, were to dispose of the Lewisham property and invest the proceeds of sale of about $500,000, those proceeds would, even at a conservative 5 per cent interest, return to him $25,000 a year. Thus his income would then total almost $40,000 a year, an amount considerably greater than the income which he is presently receiving. 68    I am not satisfied that the plaintiff has been left without adequate provision for his proper maintenance or that he has established that adequate provision for his proper maintenance requires that not only should he retain his present assets but that he should also receive absolutely Unit 10, in which he has continued to reside since the death of the deceased. 69    Further, the claim of the plaintiff, must be considered in the context of any competing claims upon the testamentary bounty of the deceased. In the instant case such competing claims are those of the nephew and the niece of the deceased, Mr Dimitrios Sclavis and Mrs Alexandra Sclavis, each of whom gave evidence at the hearing. It will be appreciated that neither of those persons is an eligible person (even though each, for a limited period, resided in Unit 10 with the deceased). Nevertheless, each of those persons was (in the events which have happened) a designated object of the substantial testamentary beneficence of the deceased, and there appears to have been, to the extent that the constraints of distance allowed, a close and affectionate relationship between each of them and the deceased. They are the nearest kinsfolk to the deceased, who was the godmother to each of them. 70    Mr Dimitrios Sclavis was born on 19 April 1940 and is presently fifty-nine years of age. He has four children (from two marriages), his wife and the two children of his second marriage being dependent upon him. Mr Sclavis is a technician in a film laboratory. He is not in affluent circumstances. He lives in rented accommodation in Athens. He has a small income (or, small at least by Australian standards), has no savings, insurance or superannuation, and appears to have little in the way of furnishings in his residence. Mr Sclavis owns a very old motor vehicle. In his affidavit evidence he expressed a desire to acquire a home of his own and some reasonably modern furniture and furnishings. 71    Mr Sclavis, his first wife and their two children (who at that time were aged almost four years and one year) resided with the deceased in the Darlinghurst unit for a period of three or four months from August 1966. 72    Mrs Alexandra Sclavis was born on 19 September 1944 and is presently fifty-five years of age. She also has been married twice. She has two children who are no longer dependent upon her. Mrs Sclavis receives no financial assistance from either of her former husbands. She is an unemployed school teacher, who became a bankrupt in 1997. She has no assets, and virtually lives upon the charity of her daughter upon whom she is dependent for accommodation and food. Mrs Sclavis resided with the deceased in the Darlinghurst unit for about two and a half months from mid-June 1997. 73    I do not consider that either Mr Sclavis or Mrs Sclavis should be deprived entirely, or substantially, of the benefits given to them by the will of their aunt. 74    Thus, even if (contrary to my foregoing conclusion) I were to be satisfied that the plaintiff had established an entitlement to an order for provision, the financial and material circumstances of each of the designated object of the testamentary beneficence of the deceased are such that any order for provision would thereby be reduced to an amount which would allow Mr Sclavis and Mrs Sclavis each to receive a significant benefit from the estate of the deceased. 75    It must also be recognised that the plaintiff has had the benefit not only of living rent free in the Darlinghurst unit for the past two and a half years, since the death of the deceased, but also of living in that unit virtually rent free for the preceding thirty-seven years. 76    In addition, the plaintiff (who had authority to operate upon the bank account of the deceased, an authority made necessary when the deceased was no longer capable of leaving the apartment) in September 1997 --- in the week preceding the death of the deceased --- withdrew amounts of $10,000 from the deceased’s bank account on three separate occasions, being a total amount of $30,000, thus leaving a balance of only about $1,500 in the deceased’s account. No satisfactory explanation has been given for those withdrawals, although the plaintiff said that the moneys were required for the deceased’s funeral, her tomb and expenses. (It should also be recorded that a little over two years earlier, in June 1995, the plaintiff had withdrawn amounts of $5,000 from the deceased’s bank account on three separate occasions, being a total amount of $15,000. He said that those withdrawals were made on the instructions of the deceased, and that he had spent those amounts on what he described as expenses. There were other withdrawals of $5,000 in October 1983 and in March 1997.) 77    I have already expressed my view that the evidence does not disclose that the deceased was in any way dissatisfied with the lifestyle which was maintained by herself and the plaintiff in the Darlinghurst unit, especially during the latter period of her life, and especially during the time when Mrs Alexandra Sclavis was residing with them and had an opportunity of observing the manner in which the plaintiff cared for the deceased. Further, I have expressed my view that I am satisfied that there was a close and loving relationship, being a de facto relationship, which subsisted between the plaintiff and the deceased over a period of thirty-seven years. 78    It will be appreciated, however, that an order for provision under the Family Provision Act is not made as a reward for good conduct; neither is it withheld as a punishment for what might be perceived as bad conduct. Such an order is made only where a plaintiff establishes that he has been left without adequate provision for his proper maintenance. 79    In all the circumstances of this case I have reached the conclusion that the plaintiff has not established that he has been left without adequate provision for his proper maintenance. He owns unencumbered real estate to a value of almost $850,000. He has an annual income from rents totalling more than $26,000. He has had the benefit of cash withdrawals totalling $30,000 from the plaintiff’s bank account in the last few days of her life. I am not satisfied that the plaintiff has established that, in those circumstances, he has been left without adequate provision for his proper maintenance. It follows, therefore, that the claim of the plaintiff should be dismissed. 80    But even if (contrary to my foregoing conclusion) I were to be satisfied that the plaintiff had established that he had been left without adequate provision for his maintenance, I consider that the financial and material circumstances of the designated objects of the testamentary beneficence of the deceased, being her nephew and godson Mr George Sclavis and her niece and goddaughter Mrs Alexandra Sclavis, are such that any order for provision an entitlement to which the plaintiff might otherwise have established would require to be significantly reduced, or even extinguished entirely, to ensure that each of those beneficiaries should receive a substantial benefit from the estate of the deceased. 81    For the foregoing reasons, I propose to dismiss the claim of the plaintiff. 82    The defendant, who has been cast in the role of the contradictor to the plaintiff’s claim and who has borne the responsibility of upholding the terms of the will of the deceased, is entitled to his costs on the indemnity basis irrespective of the outcome of the proceedings. Since the plaintiff has been totally unsuccessful in his claim, I consider it appropriate that the plaintiff should pay the costs of the defendant of the proceedings, but that the costs to be paid by the plaintiff should be the costs of the defendant on the party and party basis. The difference between the costs of the defendant on the indemnity basis and his costs on the party and party basis should be paid out of the estate of the deceased. In the event that the defendant is not able to recover from the plaintiff any part of the costs which the plaintiff is liable to pay to the defendant, then the defendant should be entitled to be paid those costs out of the estate of the deceased. 83    However, on account of the request made by Counsel for the plaintiff at the conclusion of the hearing that he should be afforded an opportunity of making submissions concerning costs, in the light of my decision, I propose to give to the plaintiff such an opportunity. Accordingly, unless within seven days from the date hereof arrangements are made with my Associate for the matter to be listed for argument as to costs, I make the following orders:

1. I order that the summons be dismissed.

2. I order that the costs of the defendant on the party and party basis be paid by the plaintiff, and that, to the extent that such costs are not recovered from the plaintiff, those costs be paid out of the estate of the late Filitsa Xanthopoulos (“the deceased”), and that there also be paid out of the estate of the deceased to the defendant the difference between the costs of the defendant on the indemnity basis and the costs of the defendant on the party and party basis.

3. The exhibits may be returned.

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Last Modified: 09/25/2000