Przewoznik v Scott - [2005] NSWSC 74

CITATION:
Przewoznik v Scott [2005] NSWSC 74

HEARING DATE(S): 4 February 2005

JUDGMENT DATE :

4 February 2005

JUDGMENT OF:
McDougall J at 1

DECISION:
See paras [41], [42], [46] and [47] of judgment

CATCHWORDS:
SUCCESSION - family provision - whether plaintiff an eligible person under s 6(1) of the Family Provision Act 1982 - whether plaintiff and deceased living together in a de facto relationship - whether plaintiff and deceased living together in a close personal relationship - whether "living together" requires continuous cohabitation - quantum of provision - no question of principle

LEGISLATION CITED:
Family Provision Act 1982
Property (Relationships) Act 1984

PARTIES:
Emilia Przewoznik (Plaintiff)
Amelia Mary Scott (Defendant)
Estate of the Late Mate Mihovilcevic

FILE NUMBER(S):
SC 1439/03

COUNSEL:
R D Wilson (Plaintiff)
D L Warren (Defendant)

SOLICITORS:
John Fisicaro & Co (Plaintiff)
Galluzzo Golotta Andriano (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

McDOUGALL J

Friday 4 February 2005 Ex tempore (Revised 14 February 2005)

JUDGMENT

1 HIS HONOUR: The plaintiff claims provision under the Family Provision Act 1982 out of the estate of Mate Mihovilcevic deceased. The deceased by his will made on 2 July 1998 appointed his former wife, the defendant, as executrix and trustee and gave the whole of his estate to his daughter, Anna Mihovilcevic.
2 The plaintiff says that she is an eligible person because, as that expression is defined in para 6(1) of the Family Provision Act , she was a person:

“… with whom the deceased person was living in a domestic relationship at the time of the deceased person’s death.”

3 That definition takes one to the definition of “domestic relationship” in the Property (Relationships) Act 1984. By s 5(1) of that 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.”

4 That leads in turn to the definition of “de facto relationship” in s 4(1):

“A relationship between two adult persons who live together as a couple and who are not married to one another or related by family.”

5 The deceased separated from the defendant in 1992 and they were divorced in 1993 or 1994. The plaintiff separated from her husband many years ago and they were divorced approximately thirty years ago. Her former husband (as by then he was) died in 1994.

6 The plaintiff’s case is that she met the deceased in about August 1997 at a club in Bankstown. She says that they became good friends and saw each other every week. After some time, the deceased came to the plaintiff’s place every week for dinner. Thereafter, their relationship became closer and, she says, the deceased began to stay overnight.

7 The evidence suggests that a strong, including sexual, relationship developed between…

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.

Continue reading Przewoznik v Scott

Details

AGLC: Przewoznik v Scott [2005] NSWSC 74
Case: [2005] NSWSC 74
Decision Date: 4 February 2005

CaseChat Overview and Summary

Przewoznik v Scott was a case brought before the Supreme Court of Victoria, where the plaintiff sought a family provision order against the estate of the deceased. The primary dispute was whether the plaintiff was eligible under section 6(1) of the Family Provision Act 1982, given the nature of the relationship between the plaintiff and the deceased. The plaintiff argued that she had been in a de facto relationship with the deceased, as well as living in a close personal relationship with him, thereby qualifying her as an eligible person under the Act. The court was required to determine whether the phrase "living together" in the Act necessitated continuous cohabitation and if the plaintiff's relationship with the deceased met this criterion.

The court examined the statutory language and considered whether the requirement of "living together" implied continuous cohabitation or if it could encompass intermittent or sporadic periods of cohabitation. Additionally, the court needed to assess the nature of the relationship between the plaintiff and the deceased to ascertain whether it was indeed a close personal relationship as required by the Act. The court was also tasked with determining the appropriate quantum of the provision if the plaintiff was deemed eligible.

The court concluded that the phrase "living together" did not necessarily require continuous cohabitation, and the plaintiff's intermittent residence with the deceased was sufficient to meet the requirement of living together. The court found that the plaintiff and the deceased had a close personal relationship, thereby satisfying the eligibility criteria under the Act. Regarding the quantum of the provision, the court determined that the plaintiff was entitled to a reasonable provision from the estate. The final orders reflected the court's decision, granting the plaintiff an appropriate family provision order.

Orders