Popescu v Borun - [2011] NSWSC 1532

Supreme Court

New South Wales

Medium Neutral Citation: Popescu v Borun [2011] NSWSC 1532
Hearing dates: 29/8/11, 30/8/11, 31/8/11
Decision date: 16 December 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The claim by the plaintiff Olivera Popescu under the Property (Relationships) Act 1984 is dismissed;
(2)The plaintiff Olivera Popescu shall receive, pursuant to her claim under the Succession Act 2006:
(a)a bequest of the property at Everton Road, Strathfield; and
(b)a legacy of $100,000
(3)The plaintiff James Vedder shall receive, pursuant to his claim under the Succession Act 2006, a legacy of $75,000
(4)The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis as to the claims under the Succession Act are to be paid out of the estate of the deceased.
(5)Interest is to run on the legacies at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
Subject to hearing argument, each party is to bear their own costs in the proceedings relating to the claim under the Property (Relationships) Act.

Catchwords:
FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - whether de facto relationship - defendant died before determination - action survived him - whether living together as couple
SUCCESSION LAW - two applications for family provision order - both plaintiffs claim to have been members of household of deceased and dependent on him - whether provision inadequate - no provision in will of deceased for either - large estate
Legislation Cited: De Facto Relationships Act 1984
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999
Succession Act 2006
Supreme Court Rules 1970
Cases Cited: Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Churton v Christian (1988) 13 NSWLR 241
Foley v Ellis [2008] NSWCA 288
Re Fulop Deceased (1987) 8 NSWLR 679
Fung v Ye [2007] NSWCA 115
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCa 221
Kingsland v McIndoe [1989] VR 273
Markulin v Drew (1993) DFC 95-140
Munro v Lake (NSWSC, McLelland J, 8 February 1991, unreported)
Light v Anderson (1992) DFC 95-120
Selmore v Bull [2005] NSWCA 365
Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vaughan v Hoskovich [2010] NSWSC 706
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
White v White [2004] NSWSC 208
Category: Principal judgment
Parties: Olivera Popescu (plaintiff)
James Vedder (plaintiff)
Nicholas Borun - deceased (defendant)
Basil Caesar Peter Borun (defendant)
Representation: R Sweet (plaintiffs)
J M Harris (defendant Basil Caesar Peter Borun)
Stojanovic Solicitors (plaintiffs)
James Antonenas (defendant Basil Caesar Peter Borun)

File Number(s): 2009/00290178 2010/00237665

Judgment

This is the hearing of a number of matters concerning claims against the estate of the late Dr Nicholas Borun.

The first claim in matter number 2009/290178 are proceedings brought by Olivera Popescu against the late Dr Nicholas Borun under the Property (Relationships) Act 1984 seeking adjustment of their property interests. After some evidence was filed by Dr Borun he died on 22 May 2010 and there were two sets of proceedings brought in respect of his estate.

The first was a claim by his daughter, Nadia Jeffery, in proceedings 2011/166632 which claim was settled prior to the hearing which commenced before me. The remaining proceedings, 2010/237665, are proceedings brought by Olivera Popescu and her son from a previous relationship, James Vedder, seeking provision under the Succession Act 2006.

Proceedings 2010/237665 and the proceedings for adjustment of the property rights were heard by me together, with the evidence in one being evidence in the other proceedings.

It is convenient to deal first with the claim under the Property (Relationships) Act which survives against the estate of Dr Borun notwithstanding his death (see s 24 of the Property (Relationships) Act ).

The proceedings in the statement of claim dated 19 August 2009 sought relief based upon the existence of a de facto relationship. At the commencement of the hearing the court gave leave to amend the statement of claim by replacing "de facto relationship" with the words "domestic relationship" with other consequential amendments. This amendment had the effect of allowing Olivera to present her case on the basis of the existence of a de facto relationship or, alternatively, a close personal relationship at the relevant time (see section 5(1) of the Property (Relationships) Act ).

It is important in this case to understand the nature of a domestic relationship following legislative amendments in 1999, as it is relevant to the resolution of the issues in this case.

Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act, which applied to proceedings that commenced after that date and to relationships which had not ceased by that date.

The amended Act (now called the Property (Relationships) Act ) applied to domestic relationships which were defined in s 5 as follows:

"5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or

(b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or

(b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

(3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following:

(a) a child born as a result of sexual relations between the parties,

(b) a child adopted by both parties,

(c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman:

(i) of whom the man is the father, or

(ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted,

(d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998).

(4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

It can be seen from the terms of s 5(1) that a domestic relationship can be either a de facto relationship or a close personal relationship. The definition of a de facto relationship itself appears in s 4 and is in the following terms:

"4. De facto relationships

(1) 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.

(2) 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.

(3) 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.

(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."

This definition, apart from the provisions of sub-clause (1), merely reflects the existing state of the law as it had been developed under the De Facto Relationships Act 1984 and the Family Provision Act 1982. See Light v Anderson (1992) DFC 95-120 applying Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677.

Apart from the exclusionary matters in s 5(2) there is no definition of "close personal relationship". Little help is obtained from the reading speeches as to the meaning of "close personal relationship". It is apparent from the terms of the separate definition of "de facto relationship" that a close personal relationship does not necessarily involve the concept of living together as a couple. Instead s 5(1)(b) refers to persons "who are living together, one or each of whom provides the other with domestic support and personal care". It is notable that both domestic support and personal care must be provided. One of them alone would not be sufficient. The "close personal relationship" has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild, and the separate definition for a "de facto relationship", concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care".

So far as the first requirement is concerned, since one is not concerned with concepts applicable to couples the requirement would be met if the parties shared accommodation together. For example, a boarder in an elderly widow's home would qualify. It may not be necessary for there to be a sharing of food or eating arrangements together.

The second requirement is cumulative. There must be both domestic support and personal care.

It is the provision of "personal care" which provides the clue to the meaning of the composite expression "domestic support and personal care". Some of the primary meanings of "personal" include:

(a) "Of or pertaining to, concerning or affecting the individual person or self; individual; private; one's own."

(b) "Of or pertaining to one's person body or figure; bodily."

Accordingly, personal care connotes care taken in connection with such matters. It could be provided by, for example:

(a) The person concerned,

(b) An employed valet or lady in waiting,

(c) a mother for her sick child, or

(d) a daughter for her elderly incapacitated mother.

The legislation in terms excludes the first two but would include the last two examples.

The concept of personal care has received further attention since I first made the comments set out above in relation to personal care.

In Hayes v Marquis [2008] NSWCA 10, McColl JA noted:

"75 Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a "close personal relationship" in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are "living together" and one or other of whom provides the other with "domestic support and personal care". It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of "living together" will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.

76 The context in which s 5(1)(b) appears is also significant. A "close personal relationship" is one of two domestic relationships (the other being a de facto relationship) whose existence may be established to attract jurisdiction under the Act. The word "domestic" carries connotations of matters relating to a household. The definition contemplates, in my view, that the facts permit of the conclusion that the two adults are living as a household.

77 Finally, some guidance as to the purpose of s 5(1)(b) can be gleaned from the Second Reading Speech in which the Minister made it clear the amendments to the Act were to cover persons living in intimate relationships not hitherto covered.

78 Central to the primary judge's characterisation of the pre-1999 relationship was the proposition that the concept of "living together" in s 5(1)(b) did not require the parties to live together fulltime. In my view his Honour was correct in approaching the case on that basis. The definition of "close personal relationship" does not require the two adults to live together fulltime. The language of s 5(1)(b) does not require such co-habitation. Further a s 5 "close personal relationship" may be contrasted with a s 4 de facto relationship. A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a "common residence" full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent. 79 Similarly, in my view, the question whether a couple are "living together" for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4.

80 Further, the concept of "living together" is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole. 81 Young J (as his Honour then was) so held in Weston v Public Trustee (1986) 4 NSWLR 407, a case which concerned the phrase "living ... as his wife ... on a bona fide domestic basis" in s 6 of the Family Provision Act 1982. The applicant had been in a relationship with the deceased for thirty years during which time he had stayed at her flat in Homebush several days every week but had kept a separate residence in Bondi. They had holidayed together, shared a car for which the applicant paid and garaged, but whose operating expenses were paid for by the deceased. She had done almost all his laundry.

82 Young J held (at 408-409), by analogy with cases which turned on whether people had lived separately and apart for the purposes of grounds for divorce under the former divorce legislation, that the court "was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive". The court was concerned to see whether the two parties had a bond akin to marriage. His Honour concluded that the word "living" in s 6 had the same connotation. Accordingly, it was not fatal to the applicant's case that she and the deceased had not physically lived in the same place seven days a week, fifty-two weeks a year.

...

85 While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with "personal care" within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105] - [106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one's person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description. 86 Master Macready commented (at [108]) that he would not have thought that matters such as "emotional support" would "by themselves" fall within the expression "domestic support and personal care". Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.

87 For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual's well being. Psyche is just as much a personal attribute requiring sustenance as one's physical self. The notion of "personal care" should not be confined to matters relating to physicality."

Einstein J agreed that the giving of emotional support might qualify as "personal care", but did not go as far as sharing the view expressed by McColl JA, commenting:

167 An important pointer in the legislation is seen in the further requirements that one or each of the adult persons is to provide the other with domestic support and personal care. These requirements clearly support the above construction of the term "living together". The key to the correct construction inheres in the notion of two adults living together at the same time as one or each of whom provides and/or receives domestic support and personal care to the other. Whilst it must be acknowledged that there will always be borderline situations requiring close attention to be given to the material circumstances, the expression requiring the provision of "domestic support" would not seem to occasion any particular questions of ambiguity.

168 The other expression requiring the provision of "personal care" may well result in differences of opinion. The expression is not defined. The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Fillmore , Master [now Associate Justice] Macready expressed the view with which I agree, that the expression 'personal care' seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as 'personal care', although this may well be the case.

Beazley JA, at [1] said that she "substantially agreed" with the reasons of McColl JA.

It is necessary to see whether there was a de facto or a close personal relationship in this case. There are substantial questions on both these issues including but not limited to:

(a) Whether there was ever a de facto relationship?

(b) Whether the de facto relationship ceased in about 1990?

(c) The effect of the failure in the present proceedings to seek any extension of time.

In relation to the claim that there was a close personal relationship the following matters arise:

(a) Having regard to Dr Borun's position that any relationship ceased before 1999 and that therefore there is no claim, whether or not that was the case.

(b) Whether the evidence supports a close personal relationship.

(c) Any necessary extension of time.

I will first deal with the claim that there was a defacto relationship between the parties. In order to give this issue perspective it is useful to first set out a general chronology of some of the events in the matter.

Chronology

The plaintiff Olivera was born in Serbia in April 1956 and in 1970 she married. She had a son James Vedder (previously known as Predrag Pavlovic) who was born in 1974. She divorced her husband in 1975.

Dr Borun was born in 1919 and married his wife Maria who was born in 1921. He had two children, Basil and Nadia, and was still living with his wife at the family home in Greenacre by the time he died in 2010.

In September 1980 Olivera Popescu met Dr Borun at a restaurant in Belgrade at which time she was twenty-five years of age and working as a housekeeper. He subsequently extended his stay in Belgrade and met with Olivera Popescu every day taking her to stay at up-market hotels and to restaurants. Olivera and Dr Borun commenced a sexual relationship.

On 10 January 1982 Olivera arrived in Australia, Dr Borun having paid for her airfare. Olivera's visa allowed her to remain in Australia for three months. She departed on 4 April 1982. During her stay Olivera lived at a unit Dr Borun owned in Bondi.

In August 1982 Olivera returned to Australia, Dr Borun having again paid for her travelling expenses to Australia. She stayed at Dr Borun's unit at Brighton Boulevard, Bondi. Olivera again had a three month visa but Dr Borun made arrangements for her to marry Valeriu Popescu, thereby laying the groundwork for Olivera to obtain permanent residence in Australia. She married him in October 1982, with Dr Borun shown on the marriage certificate as a witness.

In approximately August 1982 at the request of the Defendant, Olivera moved to a unit owned by the Defendant at Knox Street, Belmore, where she remained for about five years. She did not pay any rent or outgoings on that unit and telephoned relatives in Serbia on a regular basis, the bill for which she says was paid by Dr Borun. At this time, Olivera says that Dr Borun made promises to her in these terms:

"Don't worry about anything, I will give you a unit and my superannuation so that you have something for life".

From the time that Olivera arrived in Australia, she claims that Dr Borun provided rent free accommodation for her, gave her between $200 to $300 a week in cash (up until approximately 2002 when he arranged for Olivera to be placed on Social Security) and bought her expensive dresses and shoes. Plainly he had set her up as his mistress in one of his flats while he maintained his home with his wife and children.

In 1985 Dr Borun and Olivera went to Serbia to collect James Vedder, who was almost eleven years of age at the time. Olivera gave evidence that Dr Borun and James returned to Australia together and she returned about one month later. However James gave evidence that he had no doubt that he returned with his mother, and that Dr Borun was waiting for them on their arrival at Sydney airport (T72). James subsequently attended Belmore Public School. Dr Borun paid for James' school uniform, books and other needs associated with attending school.

James lived with Olivera at Knox Street Belmore and recalls that Dr Borun would visit frequently, almost every day, during the period that he was living at Belmore. He recalls that Dr Borun slept overnight on at least two occasions per week and that, when Dr Borun slept overnight, he slept in a room with Olivera which had a double bed in it.

In 1988 Dr Borun moved Olivera out of the Belmore unit to a unit at Everton Road, Strathfield which was much more modern than the Belmore unit. Olivera still did not pay any rent or outgoings on the Strathfield unit and resided there with James for approximately ten years. According to her Dr Borun visited her regularly after work, took her out to dinner often and had sexual relations with her. After Olivera moved to Strathfield James attended Homebush High School and completed his School Certificate.

During the course of the relationship there were many trips back to Serbia by Olivera and her son James. I will deal with these in more detail later.

By 1998 Dr Borun was approximately eighty years old. He commenced having difficulty having sexual intercourse with Olivera and ceased staying overnight.

In 2002 Dr Borun arranged for Olivera to receive Centrelink payments following which she paid the electricity for the Strathfield unit but not any other expenses. At this point Dr Borun stopped Olivera's weekly allowance.

In March 2008 Dr Borun told Olivera that she had to leave the Strathfield unit and return to the unit at Knox Street, Belmore. She did so. Dr Borun said to her:

"You now have to pay me rent, because there are new laws. You also have to return my car".

Olivera was unable to pay rent of $250 per week. On 24 April 2008 Dr Borun arranged for a termination notice to be served on Olivera. At this time Olivera considered her relationship with Dr Borun was over.

It is useful to consider the existence or otherwise of a defacto relationship by reference to the considerations in s 4(2) which I have already set out.

Duration of the relationship

Plainly the relationship was from 1982 until 2008, but there were periods when Olivera returned to Europe. These periods did not lead to a breakdown in the relationship and on some occasions Dr Borun visited her in Europe. The periods when Olivera was away from Australia were as follows:

April 1982 to August 1982

May 1983 to August 1983

June 1984 to October 1985

August 1986 to October 1986

July 1987 to September 1987

December 1987 to February 1988

May 1988 to August 1988

March 1988 to July 1989

December 1990 to July 1991

February 1993 to March 1993

August 1993 to September 1993

February 1994 to May 1994

April 1995 to August 1995

March 1996 to May 1996

April 98 to October 98

July 99 to October 99

April 2000 to August 2000

April 2001 to October 2001

March 2002 to October 2002

April 2003 to September 2003

April 2004 to October 2004

April 2005 to June 2005

July 2007 to October 2007

In these periods, apart from their meeting in 1982, Dr Borun seems to have spent time overseas in early 1988 and generally did not travel overseas for more than four weeks at a time because of his work commitments.

The nature and extent of common residence

It is clear that Dr Borun maintained his home at Greenacre throughout the period of the relationship. He kept his clothes, his personal possessions and his short wave radios, which were his hobby, at his home. He also had his home office for use as a part time surgery which was a four metre x four metre room where he saw some patients. His main surgery was at Punchbowl.

There is no doubt that from the commencement of the relationship Dr Borun would visit Olivera on a number of occasions during the week and he would stay overnight on some days. Generally this is corroborated by her son James Vedder, who says Dr Borun would stay overnight two nights a week and would spend the evening with Olivera when they slept together in the main bedroom.

It would appear that the extent of the common residence ceased in the 1990s when Dr Borun stopped staying overnight. Olivera in her affidavit dated 12 March 2010 stated:

"By about 1998 when the defendant was approximately 80 years old he had difficulty having sex with me. From about this time the defendant ceased staying overnight with me."

In May 2008 Olivera made a statement to the Health Care Complaints Commission (Exhibit 4). In that statement she said that "our relationship had ended ten years ago".

There is evidence from Basil Borun, which I accept, that he lived with his mother and father at the Greenacre home from August 1994. Basil Borun stated that apart from when his father travelled away from Sydney, he stayed at the family home every night from August 1994.

James Vedder gave evidence that Dr Borun stopped staying overnight in the mid 1990s (T83).

I accept that by 1998 Dr Borun had ceased staying overnight at the unit and thereafter he would visit Olivera from time to time each week.

Whether or not a sexual relationship exists

This question is intertwined with the previous question.

I note that in her statement of claim Olivera alleges that the sexual relationship continued until approximately 1990. This is contrary to her affidavit evidence which suggested that it might have occurred up to 1998.

Precisely when the sexual relationship ended is not clear but I accept that a sexual relationship had ceased by 1998.

The degree of financial dependence or interdependence, and any arrangements for financial support, between the parties

Plainly there was no interdependence between the parties in a financial sense but certainly Olivera was financially dependent upon Dr Borun for most of the period of the relationship. The financial dependency ceased in 2002 when Dr Borun stopped paying Olivera a weekly allowance and arranged for Olivera to received Centrelink payments. However from 2002 to 2008, she continued to live rent free in the Strathfield unit and had use of a motor vehicle provided by the deceased.

The ownership, use and acquisition of property

There is no evidence of joint ownership of property and it is plain that Dr Borun made a home available to Olivera for the whole of the period of the relationship. For a substantial period of the relationship he made a car available to her for her personal use.

The degree of mutual commitment to a shared life

The relationship seems to have been a long one in terms of its commencement in 1982 and conclusion in 1998 when overnight stays ceased. However, the shared life was a very restricted one and it seems to be mainly concerned with visits to the unit where Olivera lived. They often went out to dinner together.

Olivera also gave evidence that she and the deceased went away on holidays together, within Australia and overseas. The extent of these trips together is disputed by the defendant (for example, an alleged trip together to Brisbane is disputed at T19), however I accept that there was some shared travel. In his affidavit of 15 July 2010 James Vedder states that the deceased took Olivera and him to "many places", including a two-week holiday in Tasmania.

The care and support of children

The parties had no children together but Dr Borun helped Olivera to bring her son, James Vedder, to Australia and he supported James in his early years. James gave evidence of the assistance Dr Borun gave to him, including paying for his school uniform and books, pencils and a school bag, and buying him toys. James also gave evidence in his affidavit dated 15 July 2010 that the deceased frequently gave him money, "between $20 and $50", whilst Olivera was overseas.

The performance of household duties

The area for there to be joint household duties is limited because of the few evenings Dr Borun would stay overnight. It seems that Olivera would look after his unit in which she lived by keeping it clean. On occasion she would cook for the deceased, although mostly it seems that they ate at restaurants together.

Olivera also assisted the deceased by doing shopping at the supermarket with the deceased, both for her and James, and for the deceased's Greenacre household. The deceased would pay for all the shopping.

The reputation and public aspects of the relationship

Apart from evidence given about going out for dinner from time to time there is little evidence of the public aspects of the relationship. Certainly no independent witnesses gave evidence of such aspects.

Both children of the deceased, Nadia and Basil, had met Olivera. Both gave evidence that they had limited knowledge of their father's relationship with her. Nadia described the relationship as an "association" (T120) and Basil gave evidence that he did not know until these proceedings that Olivera had lived at the Strathfield unit (T137).

There is no doubt that a person can have more than one home and in this case it is clear that Dr Borun had a family home at Greenacre which was his base from which he went to work at Punchbowl and where he saw patients at home. He also had what Olivera would suggest was another home at the unit where she lived and where they would spend time together.

For there to be a de facto relationship it has to be a relationship between two adult persons who live together as a couple. Einstein JA in Hayes v Marquis , albeit in the context of identifying whether a "close personal relationship" existed, discussed the phrase "living together" as follows:

"[166] Upon its proper construction the expression "living together" in the context of the instant legislation is to be understood as referring to the sharing of a home: that is to say to cohabit/to dwell together. The test is an objective one. It involves assessing the nature and extent of the claimed common residence. To live together requires that the two adult persons be seen as regarding the place or places in which they live as 'their home'. Both of them may not always be found in that home because from time to time family or business requirements or similar may require one or both to spend some time elsewhere cf: Re Fagan Deceased [1980] 5 Fam LR 813 where Jacobs J observed [at 822] that "there may be states of cohabitation where (the partners) see as much of each other as they can", to which I would add - "in the circumstances". But the dominant parameter will be whether or not the individuals concerned may be discerned to regard the premises in question as their home and in so doing to be acting reasonably."

This approach was adopted by White J in Vaughan v Hoskovich [2010] NSWSC 706 at [51] and by Murphy J in Jonah v White [2011] FamCa 221 at [50]. In Vaughan , White J held that persons could live together as a couple even if for only for part of the week provided there is sufficient shared residence over a long enough period to amount to living together. At [53] his Honour said:

" In my view, the fact that they lived together only for a small part of each week does not mean that they cannot be said to have lived together as a couple. Whether they lived together as a couple, must of course take into account all of the circumstances, including those listed in subs (2). But it seems to me that the maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to "living together". Parties can live together for part of a week and also live apart, for part of a week. Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are "a couple". I accept that the phrase "living together as a couple" connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home."

In my view it is perfectly clear that if there was a de facto relationship, it had ceased by 1998 when Dr Borun ceased to stay overnight. The question is whether there was a de facto relationship before that time.

There is an absence of Dr Borun having any personal items at the unit. There are the frequent and lengthy overseas trips taken by Olivera during the European summer. In my view Olivera and Dr Borun were not living together as a couple and were therefore not in a de facto relationship. Other factors discussed above support this view, such as the lack of a public aspect of the relationship, the lack of any joint ownership or acquisition of property, and a limited demonstrated commitment to a shared life, for example.

In case someone else takes a different view, I will deal with the extension of time in relation to Olivera's claim under the Property (Relationships) Act .

Section 18 of the Property (Relationships) Act provides:

"(1) If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section.

(2) A court may, at any time after the expiration of the period referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted."

On my finding that any de facto relationship ceased by 1998, this claim is at least 10 years out of time, having been brought in 2009.

The failure to make the application within time was raised in the defence and there was no application for leave to extend time. Even assuming that I had allowed the application to be brought, the following matters should be noted.

There is no explanation for bringing the proceedings out of time, although I note that it was Olivera's view that the relationship continued up until 2008, when she was told to leave the Belmore unit. Had that been my finding, she would have commenced proceedings within the period allowed from that date.

In Selmore v Bull [2005] NSWCA 365 Mason P said of s 18:

"[12] The applicable principles were not in dispute. Section 18 does not lay down a general time-limit, giving discretion to the court to extend it. Rather, it makes two different provisions. That found in subs(2) is expressed in terms of power to grant leave to apply, not as a power to extend the primary time limit. As Bryson J pointed out in Beavan v Fallshaw (1992) 15 Fam L R 686 at 687 :

The section appears ... to treat an application for leave to apply as a normal event, calling for the court to consider two stages, a finding relating to hardship and the exercise of a discretion, without any special jealousy for the observance of the time limit or particular concern for it.... In considering whether a court should exercise a discretion conferred by statute to make an order in favour of some course, it is usual to consider whether there is a sound and positive ground or a good reason for making the order. Ultimately however it is not ... legally necessary to define exactly the ground on which a discretion is exercised favourably to an applicant.

[13] It is not mandatory that there be an explanation for delay ( Carlon and Carlon (1982) FLC 91-272)."

The important matter in deciding whether to grant an extension of time pursuant to s 18(2) is whether there is hardship. Given that Olivera will have rights under the Succession Act , which allows her to make a claim, I am not satisfied that she will lose a substantial right by the inability to bring her claim under the Property (Relationships) Act .

Even assuming that there had been a de facto relationship between the deceased and Olivera up until 1998 her only contributions were non-financial and were personal benefits and companionship given to Dr Borun. She had no assets at the commencement of the relationship and she made no financial contributions. Indeed, all financial contributions were from Dr Borun who provided a home for her and her son for 26 years.

Therefore I would not have extended the time to bring these proceedings.

Close personal relationship

It was also suggested that there was a "close personal relationship" between the parties, within the meaning of 5(1)(b) of the Property (Relationships) Act . For this to be effective it is necessary that the relationship continue after 28 June 1999, under the transitional provisions of the amending Act. On my findings the parties did not live together after 1998.

For completeness I should note the matters which Olivera suggests amount to domestic support and personal care:

First, was the provision of rent free accommodation.
Second, was the fact that Olivera looked after and cleaned Dr Borun's unit.
Third, Olivera was available when Dr Borun visited the unit and provided him with companionship and a sexual relationship. In her affidavit of 15 July 2010, she states that she "considered that I needed to be available to dine with the deceased, visit him at his surgery and be available when he wanted to have sexual intercourse or talk with me."

On the first matter there is no doubt that the provision of rent free accommodation would be financial support but in the context of the complete expression I do no see it as being domestic support.

Cleaning the unit was something which in any event had to be done by Olivera for her and her son. As to the third matter, it is clear that the sexual relationship had finished prior to 28 June 1999.

The extent to which companionship might be domestic support and personal care is not in doubt. However, in this case there is no detail in the evidence of matters which would really go to explain and illustrate that type of domestic support and personal care, provided after 28 June 1999.

In my view Olivera's claim under the Property (Relationships) Act fails and should be dismissed.

Claims under the Succession Act

I will now deal with Olivera and James' claims under the Succession Act .

There was also a claim by Nadia Jeffery, the daughter of Dr Borun. Her claim has been settled and I will refer to the details shortly.

Last will of the deceased

Dr Borun made his last will on 28 August 2009. He appointed his son, Basil Borun, the defendant, as his executor. He gave a pecuniary legacy of $15,000 to a friend, Meiada Saab. In paragraph 6 of his will he gave directions as to his home at Greenacre to permit his wife to reside therein until, "in the opinion of my Executors, [she] is no longer able to occupy the house". Upon his wife ceasing to occupy the house, the house was to form part of the residue of his estate. In paragraphs 3 and 4 he gave his interest in two companies and his superannuation to his son, Basil Borun. He gave the residue of his estate to his son, Basil Borun.

Dr Borun made no provision for his daughter, Nadia Jeffery, or Olivera or James Vedder.

Assets in the estate

At the commencement of the hearing the estate comprised the following assets:

Buckwall Avenue, Greenacre

$700,000.00

Knox Street, Belmore

$1,600,000.00

Everton Road, Strathfield

$460,000.00

1 Share (50 percent ownership) in Mainstream Metacorp Pty Limited

$1,200,000.00

Shares in SMS Management Technologies Limited (2,920 shares)

$18,425.00

Westpac Bank Accounts

$54,098.00

Total

$4,032,523.00

At the commencement of the hearing the estate held a property in Knox Street, Belmore worth at least $1.6 million, based on the valuation provided. However, Nadia Jeffery's claim was settled for the transfer to her of that property.

The costs of the hearing, if I make the usual costs order, will be borne out of the estate. The costs to date are as follows:

Defendant's costs $80,004

Plaintiffs' costs $78,756

Total $158,760

There is a possible liability for capital gains tax of approximately $125,000. It may also be that the following liabilities still exist, as disclosed in Basil Borun's affidavit of 25 November 2010:

Legacy of $15,000 to be paid to Meiada Saab;

Other legal costs of $11,772

Therefore, the net estate available for distribution is in the order of $2,246,991.

Eligibility

Both Olivera Popescu and James Vedder rely on being members of the household of which the deceased was a member and that they were partly dependent upon him (pursuant to s 57(1)(e) of the Succession Act ).

In respect of Olivera, it is not suggested by the defendant that she was not dependent upon the deceased. Plainly Dr Borun provided her with accommodation and an income for many years. She was clearly dependent upon him.

The first question is whether Olivera and James were members of the deceased's household.

Is necessary for the plaintiff to establish that she was part of the deceased's household. There was an extensive discussion of the meaning of "household" in Kingsland v McIndoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford dictionary:

"The 'holding' or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organized family, including servants or attendants, dwelling in a house; a domestic establishment".

His Honour Mr Justice McLelland in Munro v Lake (NSWSC, 8 February 1991, unreported) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff, the stepdaughter, was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

In Markulin v Drew (1993) DFC 95-140 Young J dealt with the matter at some length. He said:

"In Benny v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to member; of the insured's household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants. The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580, Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said "The circle of those 'in' is larger than those 'of', a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person 'in' the household of the insured and an uncle, temporarily a guest of the insured's father was held to be of that description." See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606, where a live in farmhand was held to be a person in the household but not of the household. In that case Schroeder JA in the Ontario Court of Appeal said that a person "'in the household' can more easily disengage himself from that relationship or association than a person who falls within the more intimate category...". It is to be noted that in the instant statute the words are "of the household". In Kingsland v McIndoe [1989] VR 273, Gobbo J had to look at the words "member of the household" under the Victorian Crimes (Family Violence) Act. His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word "household". In the Court of Appeal in Benny v Jones it would not appear that any of the authorities which I considered in my judgment or those which Gobbo J considered in Kingsland's case were referred to the Court. Priestley JA, however, did deal with the question of what is a household in (1991) 23 NSWLR at 564. From the report it would not appear that any of the decisions referred to in my judgment on the question of household were referred to the Court of Appeal or that they looked at them. Priestley JA merely said: "I do not see there is any meaning of the phrase 'a member of a household of which another person was a member', which would not encompass the way in which the plaintiff lived in the same house as his friend for three and a half years." Although Priestley JA has given the leading judgment in the majority of the cases on this Act that have gone to the Court of Appeal and anything that falls from his Honour is of tremendous value whether obiter dicta or otherwise, I think it would be inappropriate to put too much weight on this dictum if it is out of line with other judicial pronouncements on the concept of household. Needham J in Moloney v Goodwin - 1 August 1989, was clearly of the view that before one could have a household one had to have a quasi family unit. Whilst a mere boarder would not be "of the household" a boarder who supported the deceased like a brother or son might have done, did qualify. In the instant case Mr and Mrs Markulin and their daughters on any description of the word "household" constituted a family unit. There is no doubt that Mrs Markulin was a member if not a co head of that family and household. The problem is whether, on the evidence, the deceased was a member of that household, at least between 1982 and 1985.

In Munro v Lake - 8 February 1991, unreported, McLelland J considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household. His Honour, after referring to my decision in Benny v Jones and Kingsland v McIndoe [1989] VR 273 said: "The concept of membership of a household ... connotes a degree of continuity and permanency of mutual living arrangements ...". He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household. In Wagstaff v Wagstaff a decision which Windeyer J gave when a Master on 6 November 1991, his Honour had to deal with situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday, but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter and then change back into his suit to go home.

Windeyer J said that there was no doubt at all that the principal household of the deceased was with his wife, but then said: "The question is whether or not he was also a member of the household of [Nancy] ... I accept that it may be possible in special circumstances to be a member of more than one household at the same time. Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient. ... It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs." Windeyer J's statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother's home and the father's home. The child would clearly be in two households. Likewise the Mr Green to whom Mr Justice Windeyer referred who had a legal wife and two de facto wives whom he kept in ignorance of each other's existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder. Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household ever though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased's suite at the Airport Hilton Hotel. It is not necessary to go into that matter further.

The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95 to 120. I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the Court could possibly have made an order. It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child. Thus, a fellow bird watcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words "intimate connection" I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend."

It should be noted that it is only necessary to demonstrate that Olivera was a member of the household at a time and not for the whole of the relationship. If one looks at the period commencing in 1985 (from the time James Vedder came to live with his mother at Belmore) and again in 1988 at Strathfield, one has a household which certainly consisted of Olivera and James. James was a young boy who attended school. The household continued notwithstanding that Olivera and James took trips overseas at least until James left home in 1992 after commencing a training course to be a hairdresser. The question is whether Dr Borun was part of that household.

As is apparent from a discussion of the authorities by his Honour Justice Young that it is possible for someone to be a member of two households. See also the comments of Windeyer J referred to by Young J.

In the earlier years we have Dr Borun coming to the house on many nights a week and staying over at least two nights a week. Plainly Dr Borun was a member of his own family household at Greenacre but in the circumstances of his regular attendance and staying overnight at the unit occupied by Olivera and James, I am satisfied that he was also part of that household.

Therefore I am satisfied that Olivera was dependent on the deceased and that she was part of his household.

In relation to James, it is plain that when he came to Australia Dr Borun took an interest in him. Dr Borun provided his mother with funds to purchase toys when he was young and later school uniforms and other items. He had the benefit of the accommodation provided by Dr Borun to his mother and the funds provided to support her over many years.

James gave evidence that when he was at high school Dr Borun bought him a laptop and he saw his mother continue to receive money from Dr Borun, particularly when he needed clothes. When James was about 16 years of age Dr Borun gave him a one-way ticket to Belgrade and told him, "You have to learn about life. Here is an air ticket". James was in Serbia for about a year during which time he received money sent by cheque by Dr Boron, usually $100 about every two months. Dr Borun purchased his return air ticket after his year away.

When he was 19 years of age James returned to live with his mother at Strathfield. He seems to have continued living there until March 2008 at which time he and his mother moved back to the Belmore unit. James and Olivera remained there until they both moved from there in about late April 2008. From then on they have been living in rental accommodation in Yangoora Road, Belmore.

The defendant submitted that James was not dependent upon Dr Borun but upon his mother who had the legal obligation to care for him and bring him up.

In respect of grandchildren and stepchildren, a question often arises as to whether they are dependent upon the deceased or upon their parent who is also staying with the deceased. The matter has been considered in several cases. For example: In Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593 Palmer J referred to the authorities dealing with grandchildren. At paragraph 41 he said:

"The following is a convenient summary of the principles which I understand to be applicable to determination whether a grandchild is an eligible person:

The authorities make it clear that a grandchild is not normally regarded as to be shown to bring a grandchild into the category of persons for whom the testator ought to have made provision. These additional factors usually show that the testator has come to assume, for some significant time in a grandchild's life, a position more attuned to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the testator has undertaken a continuing and substantial responsibility to support the plaintiff financially: see eg Tsivinsky v Tsivinsky (unrep) NSWCA 5 December 1991 per Kirby P; Sayer v Sayer (1999) NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O'Dea v O'Dea [2005] NSWSC 46.

The authorities are equally clear that the grandchild's dependence, whether whole or partial, on the grandparent must be direct and immediate; it is not sufficient that the grandchild's dependence is the indirect result of the testator providing support and maintenance for his or her own adult child and thereby incidentally benefiting the testator's grandchildren who are directly dependent on the child: see eg Petrohilos v Hunter (1991) 25 NSWLR 343, at 346; Re Fullop (1987) 8 NSWLR 679, at 682; Pearson v Jones [2000] NSWSC 799 ; MacEwan Shaw v Shaw (above).

Further, the fact that the testator occasionally or even frequently made gifts to or for the benefit of the grandchild does not in itself make the grandchild wholly or partially dependent on the testator for the purposes of section 6 (1) (d). To qualify the grandchild as a dependant, the gifts or benefits provided by the testator must be of such regularity and significance that one can say that the testator had clearly assume a continuing and substantial responsibility for the grandchild's support and welfare: se eg Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (above); Pearson v Jones (above); Simons v Permanent Trustee Co Ltd [2005] NSWSC 223."

The quotation of Palmer J perhaps reflects the submissions that were made to him, which he appears to have endorsed. His Honour was concerned with one period of three months when the applicant was seven years old and came to live with her mother with the deceased. Palmer J went on to say in respect of that period:

"I am unable to accept that the period of three months in 1976 when Ellen, Julia and Brett came to live with the deceased at Willow Vale qualifies as the period during which Julia was wholly or partially dependent on the deceased for the purposes of section 6 (1) (d) of the Act. My reasons are as follows:

First, whatever assistance the deceased was giving by providing accommodation during this period may be seen as given for the support and maintenance of Helen, as the deceased's daughter, rather than as direct support and maintenance of Julia."

For much of James' childhood the support provided by Dr Borun was through his mother and while he was at school. However in this case we have two periods which fall outside the principles to which I have referred above. First, James travelling overseas when he was 16 and a half years of age appears to be a situation where Dr Borun took charge of James and sent him overseas to experience life. Dr Borun supported James directly with the airfares and living expenses while he was away. Second, when James was young he usually accompanied his mother when she travelled overseas. However on one occasion when he was about 12 years of age he stayed in Sydney whilst Olivera went overseas and Dr Borun helped him during that time. James gave evidence that the deceased would come over, and sometimes stay the night whilst Olivera was away, and that the deceased gave him money during that period.

In these circumstances the provision to James of accommodation, money and other items was more than minimal and was direct. This is sufficient dependency. Accordingly, I am satisfied that James and his mother, Olivera, are eligible persons.

Factors warranting the application

In relation to applicants who are eligible persons pursuant to s 57(1)(e), they must also show that, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application: s 59 (1)(b).

In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J said, in relation to a similar requirement in the Family Provision Act :

"Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the "factors" referred to in the subsection are factors which when added to facts which render the applicant an "eligible person" give him or her status of a person who would be generally regarded as a natural object of testamentary recognition."

This passage was referred to with approval by Priestley JA in Churton v Christian (1988) 13 NSWLR 241 at 252. Priestley JA added:

"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

In Brown v Faggoter (NSWCA, 13 November 1998, unreported) it was suggested that factors warranting would exist if the application had reasonable prospects of success.

In my view there are factors warranting the applications by James and Olivera. The circumstances of this case, in which the deceased brought Olivera, and then James, out to Australia, the nature of his relationship with both of them and the extent of Olivera's dependency on him, mean that they would be regarded as natural objects of the deceased's testamentary recognition.

In applications under the Family Provision Act the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two stage approach that a Court must take. These comments are equally applicable to claims under the Succession Act . At pages 209-210 Mason CJ, Deane and McHugh JJ said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

The first stage requires a determination that the provision made for Olivera and James was inadequate for their proper maintenance, education and advancement in life. If that stage is satisfied, the second stage is a discretionary question as to what, if any, further provision should be made for them out of the deceased's estate (the nature of the family provision order, if any). At both stages the court may consider the factors set out in s 60(2) of the Succession Act.

Olivera Popescu

Olivera is 55 years of age and she lives with her son, James Vedder, in a unit he rents at Yangoora Road, Belmore. Her only asset is an AMP superannuation policy apparently taken out for her by Dr Borun. Her income is a Centrelink payment of $780 per fortnight. She contributes $100 a week to James for the rent of the unit as well as $75 a week towards household expenses.

In cross-examination it appeared that Olivera might have received her mother's house in Serbia. She was extremely vague about the house and there is no evidence to suggest the property would have any substantial value. The defendant suggested that I should follow the comment of McColl JA in Hayes v Marquis (supra) at [130] where her Honour referred to my decision of White v White [2004] NSWSC 208 , that one could draw an inference to find a value as high as possible consistent with a description of the asset. It was suggested that I should assess it to have the same value as Dr Borun's home at Greenacre. In the absence of any other information about the house in Serbia I would not be prepared to make that inference and I will ascribe no particular value to the house.

It is plain that because of her lack of work experience Olivera will be unable to obtain employment. She will continue to live on Centrelink payments for the rest of her life.

Olivera suffers from depression and problems with her right knee and back. She is awaiting surgery to her right knee and receives regular cortisone injections for her back. Her physical ailments make it difficult for her to use stairs, or stand and sit for long periods.

Olivera did not contribute to the deceased's estate and it is clear that for many years up until 2002 she was provided with accommodation and income of $200 to $300 a week from Dr Borun. The accommodation continued until 2008. In addition Dr Borun provided her with expensive clothing, entertainment and a car for many years during the relationship.

Olivera did, however, contribute to the welfare of the deceased. She provided him with companionship from 1982 until 2008. Especially from 1982 to 1988, Olivera would have lunch often with the deceased at his surgery in Punchbowl. Until at least 1990, he would also spend several nights a week with her.

James Vedder

James is single and is 37 years of age. He works as a hairdresser earning $628 a week net. James is in good health. His assets consist of his personal effects, furniture, tools of trade and a car worth $11,000. He owes finance on his car loan and other debts amounting to $13,700.

He lives with his mother in an apartment that he rents and she contributes $100 a week to the $300 weekly rent, when she can.

James' father lives in Serbia and James has not spoken to him for several years. There is no evidence that his father supports James in any way.

I have earlier dealt with the relationship between James and Dr Borun and it is plain that Dr Borun was a father figure for part of James' life. The only time they had a disagreement was over James' views on Christianity but that was a minor matter. James did not contribute to the deceased's estate.

During his lifetime, the deceased maintained James to some extent, indirectly by maintaining Olivera. In addition the deceased on occasion gave James toys, a laptop, and money.

Basil Borun

Basil Borun is 58 years of age and divorced. He lives at the family home in Greenacre where he cares for his mother. He has assets of a one-half share in the company, Mainstream Metacorp Pty Ltd, which owns a block of twelve units a Cabramatta which are not strata units. It also owns an office block at Bankstown purchased in 2010, but that property is subject to a loan equal to its current value (T106). The half share is valued at $1,200,000. He owns one share in Silicon Cocoon Pty Ltd, 460 AMP shares, 150 IAG shares and 10 HIG shares. He has a share in N Borun Pty Ltd, which according to the evidence has no value. He has minimal savings, superannuation funds of approximately $100,000 and personal effects. Subject to his mother's life interest in the Greenacre home he is entitled to the assets in the estate.

Basil Borun has a number of health problems such as type 2 diabetes which results in severe peripheral neuropathy. He has had a toe on his right foot amputated and suffers from chronic foot ulcers. He suffers from macular degeneration of both eyes and sleep apnoea. He is basically unable to work because of his health problems however he does have a small web hosting business with a number of customers to whom he provides disk space and internet activity (T132). The business appears to have operated at a loss recently.

His medication costs approximately $150 a month.

Clearly Basil Borun had a good relationship with his father during his lifetime.

Basil contributed to the estate of the deceased by undertaking management of the deceased's properties from 2007. This involved collecting rents, ensuring repairs were undertaken, paying bills and dealing with agents. Basil would also drive the deceased to work after 2008, when his father lost his licence.

Maria Borun

Maria Borun is the deceased's widow and mother of their two children. She was married to Dr Borun for some 63 years and she has lived at the Greenacre home since 1969. She is 90 years of age.

In 1984 Maria Borun had a car accident which left her with severe physical injuries. She has been housebound since that time apart from visiting doctors. The house at Greenacre has been modified to assist her movements around the house. She suffers from poor hearing, poor vision, severe osteoporosis and arthritis.

Maria Borun's lower lumbar spine is deteriorating and she lost the use of her lower right leg after surgery. She wishes to continue living in the house and plainly she should not be disturbed given the special modifications to enable her to stay there while her son cares for her.

Notice of Olivera's claim pursuant to the Succession Act was given to Maria Borun by way of a letter dated 10 November 2010 (annexure F to Basil Borun's affidavit of 2 August 2011). This notice was in the form prescribed by Schedule J of the Supreme Court Rules 1970.

Discussion

It is necessary to see how the plaintiffs say they have been left without adequate and proper provision for their maintenance, education and advancement in life.

On behalf of James Vedder it is suggested that he should have a legacy of $200,000. On behalf of Olivera Popescu it is suggested that she should have the unencumbered title to the property at Everton Road, Strathfield and a legacy of $500,000.

In Foley v Ellis [2008] NSWCA 288 Sackville AJA (with whom Beazley JA agreed) made clear that, in assessing whether the provision made for an applicant was inadequate, the needs of the other claimants on the deceased's bounty must be considered. His Honour said at [88] - [89]:

"... the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act.

The point was made explicitly by Callinan and Heydon JJ in Vigolo v Bostin at [122] (231):

Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances ... The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors ."

In this case the other beneficiaries are Maria and Basil Borun (Nadia's claim having settled for a property that would not be affected by any family provision order that I make). Any family provision order will affect Basil's share in the deceased's bounty but is unlikely to affect Maria because under the will she has only been granted a life estate in the Greenacre property.

There was no application by Maria Borun for further provision out of the estate. I am satisfied that the appropriate notice was served on her. In the circumstances, one must assume that Basil will continue to care for his mother at the family home in Greenacre, as long as she can continue to do so. I note that from the date of death of the deceased, she received full ownership of a block of units at Brighton Boulevard, Bondi that she had owned as joint tenant with the deceased. This property has been valued at 2.6 million and is unencumbered. In the event that she can no longer live at the Greenacre property, she could sell the Bondi units and use the proceeds to resettle in more appropriate accommodation.

Olivera has a need to support herself for the rest of her life in circumstances where she has no assets and no earning capacity.

James gave evidence that in the future he will need provision for accommodation, a motor vehicle and a "sum of money to use in retirement." I note that he already owns a vehicle, however the entirety of a loan taken out to finance its purchase is still outstanding. His earning capacity is limited in the sense that he is earning a relatively modest wage.

Olivera gave evidence of testamentary intentions of the deceased, which are relevant pursuant to s 60(2) of the Succession Act . She said that the deceased told her on occasion that he would provide for her in his will. On one occasion he said:

"Don't worry about anything, I will give you a unit and my superannuation, so that you have something for life."

James corroborated the fact that the deceased made such comments. I am satisfied that the deceased did make promises to Olivera to the effect that he would ensure she was maintained after his death.

James gave evidence of testamentary intention of the deceased. He said that the deceased discouraged him from purchasing a property, saying to him:

"You do not need to worry about buying accommodation. I will look after you. You do not need to worry about buying a property."

In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 the High Court reemphasised the relevance of the concept of "moral duty" in determining whether inadequate provision has been made for an applicant. Gleeson CJ said at [25]:

" In explaining the purpose of testator's family maintenance legislation, and making the value judgments required by the legislation, courts have found considerations of moral claims and moral duty to be valuable currency. It remains of value, and should not be discarded. Such considerations have a proper place in the exposition of the legislative purpose, and in the understanding and application of the statutory text. They are useful as a guide to the meaning of the statute. They are not meant to be a substitute for the text. They connect the general but value-laden language of the statute to the community standards which give it practical meaning. In some respects, those standards change and develop over time. There is no reason to deny to them the description "moral". As McLachlin J pointed out in the Supreme Court of Canada, that is the way in which courts have traditionally described them. Attempts to misapply judicial authority, whatever form they take, can be identified and resisted. There is no occasion to reject the insights contained in such authority.

In Fung v Ye [2007] NSWCA 115 Young CJ in Eq (with whom Tobias JA and Bell J agreed) determined that the "moral" test did not differ much from the test of the "wise and just" testator found in other cases:

"[18] As Gzell J [in the proceedings at first instance] said, the current philosophy from the High Court as manifested in Vigolo v Bostin (2005) 221 CLR 191, is that it is quite appropriate to test the provision that the deceased made, or that the Court is being asked to make, by asking what is the moral duty that would have motivated a just and wise testator to make provision for the applicant had he or she been fully aware of all the relevant circumstances (see In re Allen [1922] NZLR 218 at 220). The test that applied before moral duty was reinstated by Vigolo was to ask: what would the community expect a wise and just testator to have done. Essentially, this test differed very little from the traditional test now reinstated."

Olivera, at a young age, came to live permanently in Australia at the request of the deceased, and later brought her young son with her, when the deceased encouraged her to do so. Olivera and James then both relied on the deceased for maintenance, Olivera from 1982 to 2008 and James during his childhood. The deceased assumed the maintenance of Olivera (and James during his childhood) and had a moral duty to provide for both of them in his will. In the particular circumstances of this case, I am satisfied that the provision made in the will of the deceased for Olivera and James was inadequate.

I turn now to the second stage of the process identified in Singer v Berghouse : what provision should be made out of the estate for their maintenance, education or advancement in life of the eligible person?

Olivera lived in the Strathfield unit for twenty years, from about 1988 until March 2008. Olivera should be given ownership of the Strathfield unit. Ownership of the property will ensure that she has stable accommodation in which to live for the rest of her life. Olivera should receive the property free of any liability to pay capital gains tax. That liability should be paid out of the estate.

Olivera should also receive a legacy of $100,000. The legacy can be used by Olivera to provide for herself as she grows older, in circumstances where she has no capacity to earn an income.

I note that there was no evidence as to what specific Centrelink benefit Olivera was receiving, nor as to the effect of a family provision order on this benefit. However the asset test for most Centrelink benefits does not include a person's principle place of residence, so that the bequest, at least, should not affect the receipt of her Centrelink benefit.

In relation to James, having regard to the relationship he had with the deceased and his need to provide for himself in the future, further provision should also be made for him out of the estate. In the absence of evidence of what might be an appropriate property for James to purchase, it would be inappropriate to determine the amount of the provision by reference to a deposit on property. He has already reached his present age without acquiring any substantial assets and owes money on a car. It is probably appropriate for him to repay his liabilities and upgrade his car. It would also be appropriate for him to have some modest sum as a backstop for future contingencies. In these circumstances, I think that a legacy of $75,000 is appropriate.

In coming to this conclusion, I of course bear in mind what Basil will receive under the will if these orders are made. Basil will own, subject to him mother's life interest, the Greenacre property, as well as the Cabramatta flats worth $2.4 million, without liability. He will own the flats through his shares in Mainstream Metacorp Pty Ltd (a half share of which he owned prior to the death of the deceased). However Basil will have liabilities, including the costs of these proceedings and the cash amounts necessary to pay the legacies. If the property at Cabramatta is sold, and these amounts are paid, he will have a substantial sum which will provide him with appropriate income.

Orders

I make the following orders:

(1) The claim by the plaintiff Olivera Popescu under the Property (Relationships) Act 1984 is dismissed;

(2) The plaintiff Olivera Popescu shall receive, pursuant to her claim under the Succession Act 2006:

(a) a bequest of the property at Everton Road, Strathfield; and

(b) a legacy of $100,000

(3) The plaintiff James Vedder shall receive, pursuant to his claim under the Succession Act 2006, a legacy of $75,000

(4) The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis as to the claims under the Succession Act are to be paid out of the estate of the deceased.

(5) Interest is to run on the legacies at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.

Subject to hearing argument, each party is to bear their own costs in the proceedings relating to the claim under the Property (Relationships) Act.

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Decision last updated: 16 December 2011

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Citations

Popescu v Borun [2011] NSWSC 1532

Most Recent Citation

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Medium Neutral Citation:	Popescu v Borun [2011] NSWSC 1532
Hearing dates:	29/8/11, 30/8/11, 31/8/11
Decision date:	16 December 2011
Jurisdiction:	Equity Division
Before:	Associate Justice Macready
Decision:	(1)The claim by the plaintiff Olivera Popescu under the Property (Relationships) Act 1984 is dismissed; (2)The plaintiff Olivera Popescu shall receive, pursuant to her claim under the Succession Act 2006: (a)a bequest of the property at Everton Road, Strathfield; and (b)a legacy of $100,000 (3)The plaintiff James Vedder shall receive, pursuant to his claim under the Succession Act 2006, a legacy of $75,000 (4)The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis as to the claims under the Succession Act are to be paid out of the estate of the deceased. (5)Interest is to run on the legacies at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders. Subject to hearing argument, each party is to bear their own costs in the proceedings relating to the claim under the Property (Relationships) Act.
Catchwords:	FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - whether de facto relationship - defendant died before determination - action survived him - whether living together as couple SUCCESSION LAW - two applications for family provision order - both plaintiffs claim to have been members of household of deceased and dependent on him - whether provision inadequate - no provision in will of deceased for either - large estate
Legislation Cited:	De Facto Relationships Act 1984 Family Provision Act 1982 Probate and Administration Act 1898 Property (Relationships) Act 1984 Property (Relationships) Legislation Amendment Act 1999 Succession Act 2006 Supreme Court Rules 1970
Cases Cited:	Brown v Faggoter (NSWCA, 13 November 1998, unreported) Churton v Christian (1988) 13 NSWLR 241 Foley v Ellis [2008] NSWCA 288 Re Fulop Deceased (1987) 8 NSWLR 679 Fung v Ye [2007] NSWCA 115 Hayes v Marquis [2008] NSWCA 10 Jonah v White [2011] FamCa 221 Kingsland v McIndoe [1989] VR 273 Markulin v Drew (1993) DFC 95-140 Munro v Lake (NSWSC, McLelland J, 8 February 1991, unreported) Light v Anderson (1992) DFC 95-120 Selmore v Bull [2005] NSWCA 365 Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Vaughan v Hoskovich [2010] NSWSC 706 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 White v White [2004] NSWSC 208
Category:	Principal judgment
Parties:	Olivera Popescu (plaintiff) James Vedder (plaintiff) Nicholas Borun - deceased (defendant) Basil Caesar Peter Borun (defendant)
Representation:	R Sweet (plaintiffs) J M Harris (defendant Basil Caesar Peter Borun) Stojanovic Solicitors (plaintiffs) James Antonenas (defendant Basil Caesar Peter Borun)
File Number(s):	2009/00290178 2010/00237665

Buckwall Avenue, Greenacre	$700,000.00
Knox Street, Belmore	$1,600,000.00
Everton Road, Strathfield	$460,000.00
1 Share (50 percent ownership) in Mainstream Metacorp Pty Limited	$1,200,000.00
Shares in SMS Management Technologies Limited (2,920 shares)	$18,425.00
Westpac Bank Accounts	$54,098.00
Total	$4,032,523.00