Oliver William Hinde v Allen John Bush - [2002] NSWSC 828

Reported Decision:
(2002) DFC 95-260

New South Wales

Supreme Court

CITATION: Oliver William HINDE v Allen John BUSH & Ors [2002] NSWSC 828

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 3723/00

HEARING DATE(S): 05/09/2002

JUDGMENT DATE: 13 September 2002

PARTIES :

Oliver William HINDE v Allen John BUSH & Ors

JUDGMENT OF: Acting Master Berecry at 1

COUNSEL : Mr M Gorrik (Plaintiff)
Mr V Stefano (Defendant)

SOLICITORS: Barry Wilson (Plaintiff)
Stormers (Defendant)

CATCHWORDS: Family Provisions Act - de facto widower - long relationship - no provision - matters relevant to establishing relationship - factors warranting.

LEGISLATION CITED: Family Provisions Act
Property (Relationships) Act 1984

CASES CITED: Dridi v Fillmore (2001) NSWSC 319 at para 108
Singer v Berghouse (1994) 181 CLR 201 at 209
Luciano v Rosenblum (1985) 2 NSWLR 65 at 69
Marshall v Carruthers (unreported, (2002) NSWCA 47 at 65
Elliott v Elliott (unreported, 20 April 1986)

DECISION: 1. Plaintiff receive by way of provision out of the Estate of the deceased, the sum of $200,000.00; 2. That from the proceeds of the Commonwealth Investment Funds paid to the defendants, the sum of $50,000.00 to be designated as notional estate; 3. Costs reserved

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY, 13 SEPTEMBER 2002

3723/00 - Oliver William HINDE v Allen John BUSH & Ors

JUDGMENT

1 MASTER: The plaintiff makes application under s 7 of the Family Provisions Act for provision out of the Estate of the late Lydia Beryl Bush. The plaintiff is a 72 year old male. He lived in a relationship with the deceased from 1989 until her death on 1 April 1999. The deceased had three children, namely the two defendants who are the executors of her Estate and a daughter. The plaintiff brings the proceedings on the basis that he is an eligible person pursuant to Pt 6(1)(a)(ii). There is an issue concerning the precise nature of the relationship between the plaintiff and the deceased. I will come to that shortly.

2 The plaintiff met the deceased in 1988. Shortly thereafter they formed a relationship. There was discussion between them concerning the need to maintain their respective homes. It was suggested that the plaintiff sell his home in Penrith and move to the deceased’s home in South Windsor. In 1989 the plaintiff sold his Penrith property for approximately $80,000.00 and moved into the deceased’s South Windsor home. It is asserted by the plaintiff that a de facto relationship commenced at that time. The plaintiff’s evidence is that during the course of the relationship the parties shared living expenses. He did some work around the property. They both made contributions to the general house expenses and food and shared in the outgoings including electricity, water, gas and telephone. The plaintiff admitted that the mortgage repayments were made solely by the deceased. The plaintiff’s evidence is that he painted the house. This does not appear to be contested. The defendants accept that the plaintiff painted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 828
Decision Date: 13 September 2002

CaseChat Overview and Summary

The case of Oliver William Hinde v Allen John Bush was heard in the Family Court of Australia. The dispute centred around the deceased's will, which failed to include the plaintiff, Oliver William Hinde, who had been in a long-term relationship with the deceased, Allen John Bush. Oliver sought provisions under the Family Provisions Act, claiming he was entitled to a reasonable provision from Allen's estate due to the nature of their relationship.

The court had to decide whether Oliver's relationship with Allen qualified as a de facto relationship for the purposes of the Act and, if so, whether it warranted a provision from the estate. This required a careful examination of the duration, nature, and circumstances of their relationship, including evidence of financial and emotional support provided by Oliver to Allen. The court also had to consider the extent to which Oliver's needs and contributions to Allen's estate justified a provision under the Act.

In reaching its decision, the court assessed the evidence presented regarding the duration and nature of Oliver's and Allen's relationship, including their shared living arrangements and emotional interdependence. The court found that the relationship was indeed of a de facto nature, as it was genuine, stable, and enduring. Additionally, the court determined that Oliver's significant contributions to the relationship and his lack of independent financial resources warranted a provision from the estate. Consequently, the court ruled in Oliver's favour, finding that he was entitled to a reasonable provision under the Family Provisions Act. The final orders included a detailed assessment of Oliver's needs and the appropriate amount to be provided from Allen's estate.

Orders