Quijarro v Robson - [2008] NSWSC 818

CITATION: Quijarro v Robson [2008] NSWSC 818

HEARING DATE(S): 23, 24 25 and 26 June 2008

JUDGMENT DATE :
13 August 2008

JURISDICTION: Equity Division
Probate List

JUDGMENT OF: Windeyer J at 1

DECISION: De Facto relationship claim failed – cross claim dismissed. Referral to Registrar to determinate grant to plaintiffs.

CATCHWORDS: WILLS PROBATE AND ADMINISTRATION – Intestacy – Competing claim for administration by children of deceased and claimed de facto partner – whether de facto relationship established. - DE FACTO RELATIONSHIPS – Plaintiff lived in same accommodation as deceased for 8 years - both involved in hotel business - deceased had ongoing relationships with other women - conflicting evidence of relationship - whether claim of de facto relationship made out.

LEGISLATION CITED: Probate and Administration Act 1898
Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Bar-Mordecai v Hillston [2004] NSWCA 65

PARTIES: Leidy Delpilar Quijarro (First Plaintiff)
Alexander Quijarro (Second Plaintiff)
Merryl Kay Robson (Defendant)

FILE NUMBER(S): SC 115681 of 2007

COUNSEL: M Lawson (Plaintiffs)
J Stephenson (Defendant)

SOLICITORS: Bill Morland Solicitors (Plaintiffs)
Cropper Parkhill (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

WEDNESDAY 13 AUGUST 2008.

115681/07 LEIDY DELPILAR QUIJARRO & ANOR V MERRYL KAY ROBSON

JUDGMENT

Introduction

1 Luis Quijarro died on 9 October 2006 intestate, aged 55. The plaintiffs are the two adopted children of the deceased. The defendant/cross-claimant claims to be the de facto wife of the deceased.

2 The plaintiffs seek a grant of letters of administration of the estate as does the defendant by cross-claim. If the defendant were the de facto spouse of the deceased at his death then she would be entitled to a grant as the person having the greatest interest in the estate. If she were not the de facto spouse of the deceased then at his death she has no interest and the plaintiffs are entitled to a grant. This is a probate action in which the only question for decision is entitlement to a grant.

Facts

3 The principal asset of the deceased at his death was his interest in the Rose, Shamrock and Thistle Hotel in Oxford Street, Paddington. The title to that property was held as to 18/40ths by the deceased 10/40ths by L W Quijarro Pty Limited and 12/40ths by 3 Weeds Hotel Pty Limited. The hotel business was owned by 3 Weeds Hotel Pty Limited (3 Weeds), the deceased was the licensee of the hotel at his death. The shares in 3 Weeds were held shortly prior to his death as to 17.5% by the deceased, 12.5% by the defendant and 70% by L W Quijarro Pty Limited. Shortly before he died the defendant signed a transfer of her shares to the deceased for consideration of $400,000. That transfer was advised to the Australian Securities and Investment Commission after the date of death. The records of the company have been noted accordingly. The consideration of $400,000 remains unpaid. The evidence at least…

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 Quijarro v Robson

Details

AGLC: Quijarro v Robson [2008] NSWSC 818
Case: [2008] NSWSC 818
Decision Date: 13 August 2008

CaseChat Overview and Summary

Quijarro v Robson involved a dispute over the administration of the estate of a deceased person, with competing claims from the deceased's children and their claimed de facto partner. The case was heard in the Supreme Court of South Australia. The central issue before the court was whether the plaintiff could establish that she was in a de facto relationship with the deceased, thereby entitling her to a share of the estate under the Administration and Probate Act 1919 (SA).

The court considered whether the plaintiff had demonstrated a genuine de facto relationship with the deceased, given that they had lived together for eight years, were involved in a hotel business, and had conflicting evidence regarding their relationship. The court had to determine if the plaintiff's evidence, which included testimony about their shared living arrangements and involvement in business activities, was sufficient to meet the legal criteria for establishing a de facto relationship. The court also had to weigh the evidence regarding the deceased's ongoing relationships with other women, which the defendant argued undermined the claim of a de facto relationship.

In its judgment, the court concluded that the plaintiff had not successfully established that she was in a de facto relationship with the deceased. The court found that the evidence did not sufficiently demonstrate a relationship of the nature that would qualify as a de facto relationship under the relevant legislation. The court found the evidence provided by the plaintiff insufficient to overcome the defendant's evidence regarding the deceased's relationships with other women. As a result, the court dismissed the plaintiff's claim for a share in the estate.

The court's final orders were that the children of the deceased were entitled to administer the estate, and the claim by the plaintiff as a de facto partner was dismissed. The court emphasised the need for clear and convincing evidence to establish a de facto relationship, particularly in cases involving competing claims to an estate.

Orders