May v Ndlovu

[2008] NSWDC 49

CITATION:	May v Ndlovu [2008] NSWDC 49
HEARING DATE(S):	12/2/08 and 6/3/08
EX TEMPORE JUDGMENT DATE:	18 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 The plaintiff was in a de facto relationship with Mr Teh on 22 September 2001. 2 The defendant is to pay the plaintiff’s costs of the proceedings in respect of the preliminary point. 3 The proceedings will be listed for status conference on 25 June 2008. 4 The application for review by the Medical Assessment Service is to be filed by the plaintiff by 4pm on 4 April 2008. 5 The exhibits may be returned.
CATCHWORDS:	De facto relationship - Whether couple studying at different tertiary institutions maintained co-habitation
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Property (Relationships) Act 1984 Compensation to Relatives Act 1897
PARTIES:	Ashleigh MAY Bonnett NDLOVU
FILE NUMBER(S):	Newcastle 586/06
COUNSEL:	Plaintiff - S J Harben SC Defendant - J A Ringrose
SOLICITORS:	Plaintiff - Thomas Mitchell Solicitors Defendant - Sparke Helmore Lawyers Newcastle

JUDGMENT

1 Ashleigh May has commenced proceedings in this court pursuant to the Compensation to Relatives Act 1987 and the Motor Accidents Compensation Act 1999. Her claim arises out of the death of Sean Leong Teh in a motor vehicle accident that occurred on 22 September 2001.

2 In order to establish her right to bring these claims the plaintiff is required to establish that she was the de facto spouse of Mr Teh at the time of his death. It was agreed between the parties that this question should be dealt with as a preliminary issue. It was governed by the definition in the Property (Relationships) Act 1984. S 4(1) of the Act provides as follows:

For the purposes of this Act a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple; and
(b) who are not married to one another or related by family.

3 S 4(2) requires that all of the circumstances of the relationship be taken into account and provides guidance in respect of other criteria that may indicate that, provided they are unmarried and living together, the parties were living together in a relationship. Couples merely sharing a house do not qualify. Couples in a relationship who do not live together do not qualify. The defendant contends that the plaintiff and Mr Teh fall into this second category.

4 Working first through the criteria set out in ss (2) I note that the following was established by the evidence:

(a) The duration of the relationship.

The evidence of the plaintiff was that she met Mr Teh in 1992 or 1993 and that from at least 1994 they lived together at various addresses in the Newcastle district until 1997 or 1998. This evidence was confirmed by the evidence of Mr Kim Teh who is Mr Teh’s father and Ms Yvonne Faber, the plaintiff’s mother.

In 1997 and 1998 the plaintiff suffered a psychiatric break down. She and Mr Teh at that time were using drugs of addiction. She developed a psychosis and there were a number of voluntary and involuntary admissions to various hospitals. The plaintiff said she was advised as part of her rehabilitation to separate from Mr Teh since the relationship was damaging her prospects of recovery. She said they did not live together for about three or five months whilst she was living at premises owned by her father at Belmont. After this period she said they resumed their relationship which continued to the date of Mr Teh’s death. The evidence was confirmed by Mr Teh senior and by Ms Faber. Therefore there was evidence of a relationship between 1994 and 2001 with a short break in 1997 and 1998.

(b) The nature and extent of common residence.

This criteria I will deal with in more detail later in my judgment.

(c) Whether or not a sexual relationship existed.

The evidence indicated that this was the case. There were some notes of Ms Pertot, psychologist, in 1998 whilst the plaintiff was under treatment to indicate that the plaintiff believed that some aspects of their sexual relationship were unsatisfactory. The evidence of the plaintiff was that after that time this aspect of their relationship continued and was pleasurable.

(d) The degree of financial dependence or interdependence and any arrangements for financial support between the parties.

There were no joint bank accounts. The plaintiff and Mr Teh maintained their own separate accounts. Much of the time during their relationship they were paid benefits through Centrelink. Neither disclosed their cohabitation to Centrelink and therefore they each received benefits appropriate to a single person. The plaintiff conceded the illegality of that conduct. She stated that she had told many lies during her period of drug addiction.

She also stated that all of their funds were pooled, that money was always short and that she and Mr Teh received financial support from her father and from Mr Teh’s parents.

Mr Teh senior confirmed that he and his wife provided financial assistance to the plaintiff and Mr Teh as a couple.

(e) Ownership, use and acquisition of property.

There was no evidence concerning any of the property of the plaintiff or Mr Teh.

(f) The degree of mutual commitment to a shared life.

The plaintiff stated that prior to her break down Mr Teh proposed to her and gave her a ring. She wore the ring constantly on her left hand or on her right hand during the period of separation in 1997-1998. Ms Faber noticed the ring and said the plaintiff told her that it was an engagement ring. The plaintiff told her of their future plans which involved Mr Teh’s working in Europe. When the plaintiff would have children they then planned to return to Australia to bring up their children.

There was evidence that during the 1997-1998 period of separation the plaintiff entered into another relationship and that she exhibited significant distress when it ended. The plaintiff stated, however, that even though she was no longer living with Mr Teh during this period she spoke to him daily and saw him regularly and that this continued association with him led to the termination of the other relationship.

Ms Faber said that throughout the period of the plaintiff’s break down and treatment Mr Teh remained very supportive of the plaintiff. There was multiple reference in the medical notes to Mr Teh as Sean or the plaintiff’s boyfriend .

The plaintiff said that during this period the provision of her continued medication depended upon compliance with the requirements of those treating her. She said she therefore lied to them about her compliance with the requirement that she separate from Mr Teh in order to assist her rehabilitation. It is clear from the evidence that Mr Teh remained supportive and committed to the plaintiff during this period.

There was also evidence that while she was studying at the University of Technology in Sydney in 2000 and 2001 the plaintiff entered into sexual relationships with others while continuing her relationship with Mr Teh at weekends and in holiday periods.

(g) Care and support of children.

There were no children of this relationship.

(h) Performance of household duties.

There was no evidence as to which of the parties was responsible for household duties.

(i) The reputation and public aspects of the relationship.

Mr Teh senior spoke of meeting the plaintiff and his son at their various shared residences, at his home, at restaurants and at family functions where they presented as a couple. Ms Faber gave similar evidence and said their presentation as a couple continued to the time of Mr Teh’s death.

Having regard to these matters and notwithstanding the absence of evidence of joint financial arrangements and property there were, in my view, sufficient indicia to establish that a relationship existed between the plaintiff and Mr Teh up to and including 22 September 2001, albeit with a period of separation in 1997 or 1998.

CO-HABILITATION

5 The real question is whether they lived together or shared a common residence in September 2001.

6 I have already dealt with evidence concerning the period in 1997-1998. After both ceased using drugs they decided to pursue tertiary studies in order to become established prior to their planned marriage. Mr Teh was accepted at Newcastle University. The course which the plaintiff wished to study was not available at Newcastle University and she therefore enrolled at the University of Technology in Sydney.

7 Mr Teh rented an apartment in Hunter Street, Newcastle. The plaintiff rented student accommodation close to UTS. The lease document that she signed indicated that she rented a room only with shared kitchen, lounge and bathroom facilities. The plaintiff said she left her belongings, including her two cats, at the Hunter Street apartment. While Mr Teh signed the lease of the Hunter Street apartment, the utility accounts were in the plaintiff’s name as were telephone and internet service accounts. The plaintiff said she initially visited Newcastle weekly then at less frequent intervals of about five to six weeks. Mr Teh visited her in Sydney with greater frequency. He was journeying to one such visit when the accident occurred in which he died.

8 She stated that they maintained their intention to marry and to put in place the plans of which she had told Ms Faber. Mr Kim Teh said that he continued to see the plaintiff and his son together after they commenced their studies. He saw them in Sydney or at the Hunter Street unit. Ms Faber said she maintained contact with the plaintiff and Mr Teh after their studies commenced. She said she often saw them together, they continued to attend family functions and they jointly organised a glider flight for her on her fiftieth birthday. Ms Faber said she travelled to see the plaintiff at UTS on occasions in company with Mr Teh and that the plaintiff stayed at the Hunter Street apartment at weekends.

9 In addition to this evidence the plaintiff tendered a number of accounts for telephone, internet and electricity services which were in her name and which were addressed to the apartment in Hunter Street.

10 A photograph of a plaque on Mr Teh’s headstone was tendered. It refers to him as a son, brother and partner. The plaintiff said that she was the partner referred to on the plaque.

11 I was referred to a number of decisions by the parties said to support their respective positions. Each was decided on its own facts as must be this case.

12 Looking at the facts which have been established in this case I am left without doubt that the plaintiff and Mr Teh would have continued to live together continuously had the decision not been made to study at different universities. I do not accept that their choice to study apart converted the relationship from a de facto relationship to one of girlfriend and boyfriend, notwithstanding the evidence of the plaintiff’s infidelity.

13 Her belongings were in Newcastle at the Hunter Street apartment, her cats were in Newcastle at the Hunter Street apartment, she stayed at the Hunter Street apartment when visiting Newcastle, not at the homes of her parents. She met with Mr Teh regularly in Newcastle or in Sydney. Accounts for portable services such as internet and mobile phone were addressed to her at the Hunter Street unit. This evidence indicated to me that she regarded the unit as her permanent home and that that permanent home was with Mr Teh.

14 I find that the plaintiff was in a de-facto relationship with Mr Teh as at 22 September 2001.

15 The plaintiff sought an order for the payment of the costs of the preliminary point. The defendant reminded me that there were other issues to be determined, including the assessment of the plaintiff by the Medical Assessment Service for the purposes of determining whether she qualified for a non economic loss.

16 The defendant conceded breach of the duty of care but did not concede the plaintiff’s entitlement to compensation. It appeared to me that it was inevitable that some part of her damages will be payable by the defendant and that the defendant will be meeting her costs in any event. In those circumstances there was no reason to defer the order for costs in respect of the preliminary point.

ORDERS

1 I find that the plaintiff was in a de facto relationship with Mr Teh on 22 September 2001.

2 The defendant is to pay the plaintiff’s costs of the proceedings in respect of the preliminary point.

3 The proceedings will be listed for status conference on 25 June 2008.

4 The application for review by the Medical Assessment Service is to be filed by the plaintiff by 4pm on 4 April 2008.

5 The exhibits may be returned.

Chamber order later made at request of the defendant that the exhibits remain with the file for 28 days.

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