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 suggests that there was to be additional consideration for the transfer, through the deceased transferring to the defendant his 7/12ths share in a property at Redfern in which the defendant held the other 5/12ths interest, but subject to the defendant taking over the whole of the liability under the mortgage to the bank over that property. There is, however, no written document evidencing any such arrangement.

4 Limited letters of administration pendente lite were granted to the defendant on two occasions, one of which grants was for the purpose of enabling a contract for the sale of the hotel property, entered into by the defendant on behalf of the estate without any authority, to be concluded. The net proceeds of sale with interest now amount to about $1,053,500 which in a schedule of present assets annexed to an affidavit of the defendant, sworn on 24 June 2008 is all said to be an asset in the estate, which could not be correct. It might amount to much the same, if the assets of 3 Weeds and the Quijarro Company were all in the hands of the deceased as the only shareholder, but that is not yet established. In the same way the schedule of liabilities lumps estate and company debts together. No doubt this will be sorted out in due course. For present purposes it is sufficient that there is proved to be property in New South Wales. The evidence is not sufficient to enable a grant of letters of administration in this action at the present time, as there is insufficient compliance with the rules. That is not of significance because once it is decided whether or not the defendant is entitled to share in the estate, procedural matters for the grant can be taken care of by the registrar.

5 The deceased was born in Ecuador. According to the death certificate he was married twice, but no details are given of the first marriage. The second marriage was to Rita Quijarro (Rita) on 2 November 1980 and ended in divorce on 7 July 2006. The plaintiffs are adopted children of the deceased and his second wife. They may have been adopted first in Ecuador but were adopted by order of this Court in New South Wales in 1992. By that time it seems that the adopting parents were probably separated or in the process of separating.

6 The deceased was something of a philanderer. He had relationships with quite a number of women both before and after separation from Rita, including the period during which the defendant claims to have been in a de facto relationship with him.

7 The defendant married in 1965 but separated in 1993. She remains married. There are four children of that marriage. In 1993 and up to 2004 the defendant was a tutor in genetics at the University of Sydney and then managing director of the Fruit Fly Research Centre at the University. She and the deceased met in 1993. They immediately formed a relationship including a sexual relationship. The defendant was living in Camperdown and the deceased was living in Surry Hills. They did not live together in the same house but they did spend nights in each other’s houses. The deceased changed houses, first to Camperdown and then later to Paddington and he and the defendant did live together in the Paddington house for six months in 1998. During this time I accept the evidence that they ate together, slept together and it seems lived as a couple would. It is accepted by the plaintiffs that the deceased and the defendant were in a de facto relationship at some stage and it seems that they were then.

8 In 1996 or 1997 the deceased and the defendant bought, together with a Mr and Mrs Berger, a property in Redfern. A mortgage loan was arranged through the Commonwealth Bank of Australia for this and that bank still has a mortgage over the property. The evidence does not establish the original shares in which the title was held, but in 1997 Mr and Mrs Berger were paid out after which the property was held as to 5/12ths by the defendant and 7/12ths by the deceased as tenants in common. The title as so registered remains in that position.

9 The hotel was purchased in 1998. According to the defendant it was purchased by the deceased with two business partners, whose shares were subsequently bought out, but there is no evidence as to how this was achieved. The defendant says that she “contributed $25,000 to assist Luis in buying his partner, Leon Berger’s share of the hotel”. The defendant moved into the hotel in September 1998 and the deceased moved there in 1999 after selling his Paddington property. The hotel has a basement, bars on the ground floor, licensee’s accommodation on the first floor, hotel guest accommodation on the second floor and a third floor with a bedroom and at least a laundry giving access to a roof area.

10 There are two bedrooms on the first floor. The defendant said that she and the deceased initially slept in the main bedroom but that she had problems sleeping due to compressor noise and the deceased complaining about her snoring so that after a short time she usually slept in the small bedroom on the first floor, although regular sexual relations continued. Later she moved to the bedroom on the third floor, saying that the sexual relations continued and that she continued to use the bathroom on the first floor and that she kept her belongings there. While I consider it is more likely than not that she did use the bathroom there, I do not accept that she kept all her belongings in the second bedroom there.

11 In April 2004 the deceased and the defendant moved to live in a flat at Zetland. The defendant said they did this to be able to be together and away from others. The deceased told friends it was to enable alterations to the hotel, that he did not want the defendant there, but she insisted on going with him. There were two bedrooms at Zetland and one bathroom. The defendant said the same sleeping pattern continued.

12 As often happens in these cases a great deal of evidence and almost interminable cross-examination was directed to the sleeping routine, who used what bathroom, and where the particular clothes were kept for the period from 1998 to 2006.

13 It is necessary to explain one matter with the affidavit evidence as otherwise there would be some confusion. The defendant originally swore an affidavit on 27 August 2007 which had some procedural problems. A new affidavit in the same terms was sworn on 24 June 2008 and read in the proceedings, but it has to be treated as the defendant’s affidavit really made in August 2007 relevant to the de facto issue. In that affidavit the defendant painted a somewhat different picture from the picture which finally emerged. She gave evidence about having regular meals with the deceased, cooking for him and his children, when they were staying at the hotel, and doing all the household work and laundry. From some of this evidence she subsequently stepped back somewhat. In that affidavit she said that the deceased died on 9 October 2006 “during a trip to visit friends somewhere at Tweed Heads”, which on any basis was misleading and she gave little information as to relationships the deceased had with other women, in respect of some of which she was at least aware. She said for instance that although she was aware the deceased was not always faithful to her, she remembered only one time when he did not come home while they were in Zetland. I do not accept that as true.

14 It is necessary to deal with the evidence of witnesses as to the relationship. Prior to the defendant meeting the deceased and while he was still living with Rita he had a relationship with a lady named Florence. While he was living at the hotel and probably before that he had a relationship with another woman called Deborah. Rita said that she used to visit the deceased in the hotel once or twice a year until December 2003 or early 2004; that when she did so she never saw Ms Robson; that she slept with the deceased in his bedroom and had sexual intercourse with him there. She said she saw no women’s clothes in the bedroom. She was living at that time and still lives on the Gold Coast in Queensland. She said that the deceased visited her every four or five months from 2001 to 2006 and that they had sexual relationships when he visited. The deceased spoke of the defendant to her, and of his sexual relations with the defendant as he had done about his sexual relations with other women and she said that the deceased told her that the defendant was only a business partner. She knew of the relationship of the deceased with a Marilyn Burton and a Mrs O’Brien to which I will come. It was she who introduced the deceased to Marilyn Burton. She and the deceased were divorced on 7 July 2006, but they had been discussing this in early 2006 and before the deceased met Mrs Burton. She said that as she was retiring from work she wanted to have her financial situation in order, which had not been necessary before. I accept all this evidence. Although it could be said that Rita would wish to assist her children, I found her to be a convincing witness. She also gave evidence which I accept that the defendant’s room at Zetland was tidy and well kept when she visited after Mr Quijarro died but that the bedroom he occupied was in a messy and disordered state. I accept that as well. It is not contested.

15 The plaintiff, Alexander Quijarro, gave evidence on affidavit of meeting the defendant in 2000 at an Olympic event and of meeting Deborah with his father at another Olympic event. Around the time of the Olympics and in late 2000 he said that he often saw his father with Deborah touching and holding hands. He said that he never saw his father display affection towards the defendant. He lived at the hotel for three months in 2001 and worked there and saw his father and the defendant working there. He said that they never kissed, hugged, held hands or touched in an intimate way. I accept that evidence but against that the defendant said that she thought it inappropriate to display affection while working, except on special occasions such as Christmas parties. I do not think this evidence is of much significance. He also said that while he was staying at the hotel he had only one or perhaps two meals with his father and the defendant and that he had about 60% of his meals alone and about 40% with his father. Alexander went to the Zetland apartment about two weeks after his father died. He gave, what I will call, the expected evidence about bedrooms. By that I mean that he did not see items of women’s clothing in the bedroom where the deceased slept. He said that the defendant said, talking about Zetland, that some percentage was hers and some the deceased, but I am satisfied that if something like that was said it was about the hotel, not Zetland. He said that on inspection of the deceased’s bedroom the defendant had said, “This is Luis’ bedroom. I haven’t touched anything because I wanted you to see how he left it”. He said there were no articles of women’s clothing in the room and no photographs of the defendant and his father. Again I accept his evidence in general. He did admit to having seen women’s boots there, which belonged to the defendant.

16 The plaintiff, Leidy Quijarro was born in 1984. Her evidence of the relationships her father had with women was similar to that of her brother. She lived in the hotel for six months in 2001. She gave the expected evidence about belongings and clothing in the deceased’s room and in the defendant’s room. At this time the defendant was sleeping on the third floor. Leidy Quijarro said that there was a separate bathroom there which the defendant denied and after considering this carefully I do not accept that there was a bathroom available on the top floor. Apart from that I accept the evidence of this plaintiff in general. After 2001 she said that she only saw her father about once every six months and never with any woman. She said that at the visit to Zetland after her father died the defendant said, “Luis and I were not a couple. We were only business partners.” But in cross-examination she agreed that the defendant said as well “This was Luis’ and my home. No one else was allowed in. This was our private sanctuary away from the hotel.” She gave the expected type of evidence about the bedrooms at Zetland. At least here there was only one bathroom so that it was not suggested it was not used by both the deceased and the defendant.

17 I should say now that I do not think the question of whether or not there is a de facto relationship can often be determined by the position of clothing or use of bathrooms. There are hundreds of married couples who keep clothing in different rooms; there are no doubt married couples who sleep in separate rooms, but have a committed relationship. There are many married couples who use different bathrooms and no doubt many more who wish that they could.

18 Mrs Winifred O’Brien is aged 69. She came to Australia from England in 1988. She met the deceased in 1990 and a relationship was quickly formed, the deceased staying with her at her home in March or April 1990 when a sexual relationship commenced. After that they went out regularly in public and according to this witness “kissed each other in public, hugged and otherwise behaved as a married couple”. She said she visited the deceased in his homes before he moved into the hotel and often stayed the night with him. She only visited the hotel on a couple of occasions, as she did not like hotels. She said that the deceased visited her at her home once or twice a week and often stayed overnight. On occasions he would stay for two or three days. She cooked for him and gave him meals to take home. Every week from 1996 to 2006 she washed his clothes and ironed them. She said that there was a regular sexual relationship until she had an operation in 2002 when this ceased for a while, but after further operation in 2003, the sexual relationship resumed at least once a week. This continued until about ten weeks before he died but it ended because Mrs O’Brien noticed that the deceased was getting short of breath and grabbing his neck during intercourse. She helped him when his mother died in October 2006 as she had visited the deceased’s family in Ecuador in 1996. She received many cards of endearment which are in evidence, going up to November 2005. She met the defendant only when she called on 10 October to tell her that Mr Quijarro had died, which was the first time she had been told that the deceased was married, although at that stage this was actually not correct. This indicates the defendant had not been told of the divorce. Mrs O’Brien said that on this occasion the defendant said, “I have come to tell you that Luis has died. He is married to Rit. She has two kids and he has a grandchild. He’s met this woman and he was going to get married again.” She said that the deceased referred to the defendant, Ms Robson, as the manageress. She did not know where the deceased was living after he left the hotel but she knew he had left the hotel. I formed the impression that this witness was very fond of the deceased. She said she loved him. I accept that. Although it was clear Mrs O’Brien was antagonistic towards the defendant, this may have been because the claim the defendant makes is contrary to what the deceased stated of the relationship. I accept her evidence. The only matters of real contention were the overnight stays.

19 After reading the evidence of Mrs O’Brien about the laundry, the defendant in an affidavit of 1 November 2007 drew back a bit from her evidence saying that she was not good at washing and only washed the light items such as underclothes and the rest was done at the laundry. She said that the deceased often went out on Friday saying he was going to the laundry. I find that the defendant must have known that the deceased was visiting another woman and I do not accept that she could have thought that the laundry was being done by a business, as she must have seen it when it returned. I also accept the evidence of Mrs O’Brien that the deceased stayed with her overnight on many occasions which evidence the defendant denied. The defendant, however, drew back from her unequivocal evidence about overnight absences in the second affidavit. In the same affidavit the defendant said that on 7 October she arrived at the hotel about 5.00 pm, worked there with the deceased until 1.00 am on 8 October when he left telling her to bring home a bottle of champagne. She said she arrived back at Zetland about 4.30 am, that they lit candles and made love. He left for the airport on 8 October at 6.00 am to visit Marilyn Burton.

20 The next witness I will discuss is Marilyn Frances Burton, a single lady who lives at Stokers’ Siding near Byron Bay and who seems be known to many people as “Buda”. She did not complete the draft affidavit prepared for her but she swore to its contents in the witness box and it was admitted as a statement. She said that she met the deceased on 8 February 2006 at Murwillumbah; that it was love at first sight; that the following day she gave the deceased and his wife, Rita, a massage at the bed and breakfast establishment where they were staying; that shortly thereafter the deceased rang to say that he was coming to see her; that she picked him up at Coolangatta airport on 26 February and took him to her home where he gave her a stone necklace and said, “We are now spiritually married”; that he stayed until 1 March and a sexual relationship developed which continued until the day he died. After that she said that they were in constant contact and spoke to each other every day. The deceased told her of the defendant saying:

I am sharing a flat with a woman, Merryl, with whom I previously had a relationship with, but we are not involved any more. Merryl is a miserable woman. She won’t pay rent to live on her own. She wants to live with me so that she doesn’t have to pay rent on her own. I don’t want her around but she won’t go.

From about that time the deceased visited Ms Burton for three or four days each second week.

21 According to Miss Burton, she and the deceased spoke of getting married in Ecuador, of preparations for this, of plans to develop the hotel and of her selecting colours for the penthouse there where they were to live. She was told about Rita and discussed the need for a divorce. She said the deceased visited her for a few days every second week, a fact accepted by the defendant. She said that the deceased said to her friends, on being introduced, “I am Buda’s fiancé”. She arranged to have the deceased noted as a regular driver of her motor car on the insurance policy. She and the deceased went for a holiday in New Zealand between 10 and 16 May 2006, the deceased paying for both the tickets and their accommodation. While they were in New Zealand the deceased’s mother became very ill and on their return to Australia he flew to Ecuador to see her and he was away for about ten days. She said that in July 2006 the deceased said that he had found a place for them to live in Leichhardt and she had told him that she was not ready to come to Sydney yet and needed a little more time. In August 2006 her mother became ill, and the deceased paid for her airfare to go to Melbourne to visit her and he flew down there himself for one night and they stayed together in a hotel. She said that shortly after the deceased’s mother died on 1 October 2006 they had a conversation discussing marriage; that this would not have to take place in Ecuador and that it should be on 10 March 2007. On 8 October 2006 the deceased flew to Coolangatta airport again for a visit with a return ticket for 13 October, 12 October being his birthday. She said the deceased was very tired and slept most of the day. They went out together in the evening; she said the next day the deceased woke up at about 2.00 pm, they talked about wedding plans, and he rang his sister in South America to discuss his wedding plans with his family. Later that night they went to bed, she realised something was wrong, called the ambulance and her next door neighbour, but the deceased had died before the ambulance had arrived. She called the police, called the deceased’s sisters in South America, then called the hotel and spoke to the defendant. Subsequently she rang the deceased’s accountant, Mr Coucher, whom she had been told to ring if ever there were any problems.

22 Miss Burton said in oral evidence that she and the deceased discussed proposals for a new building proposed for the hotel site and a shop to be run there. They discussed colour schemes for the penthouse apartment where they would live and they bought household items in lime green colours for it. She did not know who owned the hotel. I accept the evidence of this witness. Although it would be difficult for the defendant to contest any of this evidence, it is supported by evidence of other witnesses to which I will now turn.

23 Mr Bray is a real estate agent. He had dealings with the deceased from 2004 in connection with a proposed redevelopment of the hotel. He visited the deceased at the hotel two or three times a week, spoke regularly to him on the telephone and went to films with the deceased and had meals with him. In his affidavit of 31 July 2007, paragraphs 8 and 9 are as follows:

8. After getting to know Luis I became familiar with Ms Merryl Robson. I came to know Merryl Robson through Luis at the hotel. I first met Ms Robson in or about December 2004. At that time Ms Robson, Luis and I had a conversation wherein we used words to the following effect:

Luis: "This is my business partner Merryl."
Me: "Hi, my name is Anthony."
Merryl: "Hello."

9. Some time after meeting Ms Robson I had a conversation with Luis wherein he said words to the following effect:

Luis: "I only ever brought Merryl into the hotel because I felt I owed her a favour after I ended my relationship with her some time ago. I felt that she did me a lot of favours when we were involved with each other. At the time I brought her into the business I trusted her business judgment, so I thought she would make me money. When we were involved with each other, Merryl never made any effort to welcome me into her family. I couldn't take it any more so I broke it off."

24 He said that the defendant never went out with the deceased on social occasions when he was present and that he never saw outward displays of affection between them. The deceased told him of Buda and his visits to her every two weeks. The deceased discussed with him his plans for life with Buda and the deceased told him on 5 October 2006 he was going to the north coast again and he intended proposing then and getting married in March 2007. He knew that the deceased and the defendant were living in “shared accommodation” at Zetland. He said that the relationship of the deceased with Ms Burton commenced in 2005. That was incorrect, but otherwise I accept his evidence.

25 Mr Sweetapple is a builder introduced to the deceased by Mr Bray. His evidence of conversations with the deceased as to his feelings for Ms Burton corresponds with that of Mr Bray. There were conversations about Burton’s influence, their visions together and her being his kindred spirit and his need to get to Byron Bay for his wellbeing and salvation. However, he did say the following in paragraph 31 of his affidavit of 10 July 2007. Where the deponent has written “Buddha” I have changed this to “Buda”:

31. Between June and October 2006 I spoke with Luis about Buda [sic] on a number of occasions. During these conversations Luis said to me words to the following effect:


Luis: "Buda is my salvation."

Luis: "Buda is an amazing generous person. She gives me a feeling of wellbeing and comfort."

Luis: "I would like to get Buda involved with the fit out of the penthouse upstairs. I want it to be comfortable for her. I want to bring Buda down to Sydney. But I'm a bit worried that she might not fit in. Se is a beautiful generous person. She might be uncomfortable in Sydney."

Luis: "Buda has had a hard life in Victoria. She has been poorly treated by her family. I'm impressed that she is not bitter given what she has been through."

Mr Sweetapple was not cross-examined.

26 Mr L M Coucher is an accountant. He was employed by the deceased in the 1990s for his taxation affairs and he was involved in the incorporation of 3 Weeds Hotel and L W Quijarro in 1998. He was accountant for those companies. He became friendly with the deceased and met with him each week. He assisted with the buying out of the other original partners in the hotel. In 2002 the deceased and a Miss Butler, a long term employee of the hotel, had Christmas dinner at his home. The deceased and the defendant were at his daughter’s wedding in 2003. His wife cooked some meals for the deceased in 2002 or 2003 for some six months. The evidence of the defendant however, is that these meals were taken to the hotel and sold to customers in the hotel. That is, I think, unlikely

27 Mr Coucher visited the hotel regularly between 1998 and 2004. He gave the expected evidence about clothing in bedrooms which in his case meant not seeing the defendant’s clothes in the deceased’s bedroom, and of conversations with the deceased as to his relationship with the defendant. During the time up to 2004, he said the deceased made the following statements to him:

Merryl lives in a room on the floor above my room.

Merryl has her room, I’ve got mine.

Merryl lives upstairs rent free. She won’t even buy food for herself. She takes food out of the pub’s kitchen but there is never anything for me. When I buy food and put it in the fridge she takes it and doesn’t replace it.

I have to move out of the hotel because expect the builders will start the renovations soon.

I want to get away from Merryl.

I wanted to get away from Merryl but I would have to pay her out. If I got rid of her I would have to buy her shares in 3 Weeds. I don’t have the money to do that just now. Merryl said that she has nowhere to go while renovations are being done. I told her she could move into one of the bedrooms at the Zetland apartment as long as she pays half the rent.

When I pay the rent for Zetland out of 3 Weeds will you apply half each to Merryl’s and my loan accounts.

28 Mr Coucher said that between 2004 and the date of his death the deceased complained about the defendant not buying anything for the unit, taking food from the hotel and other such matters. Mr Coucher did as requested so far as the loan account was concerned. He gave evidence much the same as the other witnesses as to conversations with the deceased about going to the north coast to see Buda, her being his soul mate and that in August or September 2006 the deceased had said to him, “Once we get the pub all organised I can marry Buda and settle down with her. We can travel the world together and enjoy the rest of our lives.”

29 Mr Coucher said that in about July 2006 the deceased told him that the defendant had agreed to sell her shares to him for $400,000 and his interest in Redfern and had said, “I want to get rid of her out of my life”. He prepared the transfer of shares on the basis of a total consideration of $400,000 with no mention being made of the Redfern property. That document was signed although the transfer was not registered until after the date of death of the deceased. He agreed the $400,000 was not paid.

30 Mr Coucher did visit the Zetland home at the meeting after the death of the deceased. He said that the defendant said to him, “Do you see the lock on my door. That’s to keep Luis out. He tried to hit me a number of times. Can you see the scuff marks on the door where Luis tried to get in.” He said that he inspected the bedroom where the deceased lived, it having been pointed out to him by the defendant. He said that it was in a mess, generally untidy and there were no women’s clothes there.

31 So far as the locking out is concerned, the defendant said that there was one occasion when the deceased attacked her as he was extremely angry about some breaches of the Liquor Act occurring at the hotel through there being underage drinkers on the premises. The defendant gave a number of versions of the reasons for the transfer of the shares; one was that the deceased had decided that it would be easier to get finance for the redevelopment if he was the sole shareholder. I do not accept that statement or that reason. She also said that at that stage the deceased was extremely angry with her; that they were going through a bad period; particularly after a second incident at the hotel in April 2006, involving under age drinking that he produced the document one night behind the bar having shown it to her about two months earlier, and she signed it. So far as this is concerned, I find that the defendant did know that she was signing a transfer of her shares. She said that she did not expect this to be a permanent arrangement. She did accept that if those shares were transferred by her to the deceased and if he transferred his share in the Redfern property to her then so far as their financial affairs had been intertwined they would have been separate.

32 Fiona Robson is the daughter of the defendant. She stayed in the hotel when visiting Sydney in 2000. She thought her mother and the deceased had a close relationship. She said her mother’s clothes were in the main bedroom. In 2003 when her mother was in hospital she came to Sydney and stayed at the hotel. She said that the deceased visited her mother each day and brought her clean clothes. On other occasions they all ate together. She knew of the apartment in Zetland but did not go there. Her evidence was of the deceased and the defendant being an affectionate couple, going to meals and concerts together, going to the Hunter Valley together for a holiday for the defendant’s birthday and coming back very happy.

33 Mr Laurie Liskowski is an architect. He worked on various projects for hotel renovations and extensions. The defendant was often at the meetings. He visited the first floor and saw their possessions were intermixed, meaning that they both had possessions in the main bedroom. He saw them in public away from the hotel when they “appeared to be as a romantic couple, very devoted to each other and very respectful to each other”. His evidence however finished in 2004.

34 Mr Ajbschitz lives in Napier Street behind the hotel. It seems he was one of the few who did not object to proposals for the hotel development. He said that the deceased referred to the defendant as his wife and said in 2005, “We have been together close to 12 years, she is best thing that ever happened to me in my life”.

35 Three other witnesses whose affidavits were read for the defendant and who were not cross-examination, namely Beata Chudyba, Seamus Power and Philip Rennie all gave evidence which generally supported the case of the defendant as to affection between the two and by words as well as gesture.

36 As in many of these matters the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance with statements made to them by the persons involved in a relationship. It is usually not possible to reject the evidence of witnesses of one side and accept the evidence of witnesses of another in coming to a decision as to whether or not a de facto relationship has been established. It is also necessary to bear in mind it is incorrect to think that perfection and harmony is a necessary requirement in de facto relationships but not in married relationships: Bar-Mordecai v Hillston [2004] NSWCA 65. Nevertheless for a de facto relationship to continue to exist it is necessary for there to be a sense of commitment on both sides.

37 While what I have said about witnesses having different views and accepting the truth of what they are trying to say, is I think correct, that does not always apply to the evidence of the parties to the relationship. While the defendant’s evidence was that she did not know the deceased had a continuing relationship with his then wife and I accept that evidence, I do not accept her evidence of her view of the relationship with Mrs O’Brien. I do not accept her evidence that the deceased did not spend nights away and I accept the evidence of Mrs O’Brien as to that. I do not accept her evidence that she thought that the deceased was just going off on Fridays to take the washing to the laundry. I accept the evidence of Mrs O’Brien that she did the deceased’s washing and ironing, and the clothes which he brought back could hardly have looked as though they were coming from a professional laundry. It is therefore obvious that the defendant must have known that the relationship was not as secure as perhaps she would have wished it to be or wished to think that it was. In fact in her affidavit of 1 November 2007, she admitted as much saying in paragraph 133:

133. Perhaps I realised, to some extent over the years, that Luis may not have always been honest with me about his relationships with other women. However, I loved him and I believed that he loved me and that such infidelities that occurred would, as I understand in fact occurred, pass. So far as I was concerned, I was in a committed and sharing long term life partnership but one in which my partner was incapable of constant sexual fidelity. I had to and did grow to accept that that was the way it was with Luis.

38 The following matters are of significance in determining the nature of the relationship, at least up to the end of 2005 and would support a finding for the defendant:

(a) The deceased and the defendant commenced to live together in 1998 and at least lived in the same premises until 2006.
(b) The had a continuing sexual relationship from 1993.
(c) They worked together in the hotel in which business they both had an interest.
(d) They went out together on occasions and appeared, at least to some people, as a couple.
(e) That although the deceased had continuing relationships with other women, including his wife and Mrs O’Brien, he remained living in either the hotel or at Zetland where the defendant was living.
(f) That the parties moved from living in the hotel to the flat at Zetland which points to a reasonably close relationship at that time or at the least an acceptance of each other’s company.
(g) Cards of endearment were given or sent by the deceased to the defendant.

The following matters are against such a finding:

(h) There is no evidence of any intermixing of money or assets. Redfern was a business investment held in different shares; there is no evidence of joint bank accounts. Against this, however, it must be accepted that the parties, to a large extent, lived out of the hotel.
(i) The defendant did not perform household tasks to the extent she originally alleged. At least while the deceased’s children were at the hotel, she prepared only a few meals; she did not do the laundry as she originally alleged; she certainly did not look after the deceased’s bedroom at Zetland. Nevertheless I accept that the defendant did carry out the general cleaning in the licensee’s accommodation in the hotel.
(j) There was no relationship or connection between the children of the parties or any real relationship of one party with the children of another party.
(k) The relationships of the deceased with other women indicate a lack of commitment by him to the defendant. His activities lead to an almost inevitable conclusion that he felt free to do as he wished.
(l) The fact that the defendant slept for some time on the third floor of the hotel, a long way from the deceased, even allowing for sexual intercourse before and after sleep.
(m) The fact that the deceased slept with his wife in the main bedroom in the hotel without the knowledge of the defendant.

39 The facts such as using the same bathroom and some clothes being in the main bedroom at the hotel are, as I have said, I think of little significance. Nor do I consider the lack of display of affection when working together in the hotel significant. It was after all a business in which each was interested.

40 After considering all these matters and the other evidence I think it appropriate to determine whether at the end of 2005, had the deceased died then, the defendant would have been the de facto spouse of the deceased entitled to take on intestacy pursuant to s 61B(3B) of the Probate and Administration Act 1898. Section 32G of the Probate and Administration Act is as follows:

32G Interpretation

(1) In this Part:

de facto relationship has the same meaning as in the Property (Relationships) Act 1984 .
de facto spouse , in relation to a person dying wholly or partly intestate, means someone who:
(a) was the sole partner in a de facto relationship with the person, and
(b) was not a partner in any other de facto relationship.

(2) Except where the contrary intention appears, a reference in this Part to the spouse of an intestate includes a reference to a person who, at the time of death of the intestate, was the de facto spouse of the intestate.

Section 4 of the Property (Relationships) Act 1984 is as follows:


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.

41 I have set out the facts which I consider important under the s 4(2) heads, bearing in mind that it is the whole not the particular part which is important, that the list is not exclusive, and that the purpose of taking matters in the list into account is to determine whether the deceased and the defendant lived together as a couple, which in general persons considered as united as one or united in the same way as if married. It is, however, different from marriage which is a status brought about by contract which can only be dissolved by death or court order. A de facto relationship on the other hand can end at any time by agreement or by action of one party. Thus commitment to a shared life is a fact of considerable significance to be taken into account.

42 In reaching a conclusion on this question the evidence of witnesses or statements made by the deceased must be treated with great care. Usually, as here, the statement is made to one person only, which makes it easy to give evidence which may not be true. For instance, evidence of statements of the deceased that his relationship (whatever it was) with the defendant was over could not be accepted as true if the evidence of the defendant is accepted that the deceased was regularly in bed with her engaging in sexual intercourse. Generally speaking I accept that part of her evidence.

43 The strongest evidence of there being a de facto relationship at the time of the move to Zetland is that the parties both moved there, although the relationship with Mrs O’Brien and Mrs Quijarro continued as before. But against that is the evidence, which I accept, that the deceased instructed his accountant that the rent at Zetland be debited in equal shares to his loan account and to the defendant’s loan account.

44 The onus is on the defendant to establish the relationship. It is not an easy question, but I consider that there was no de facto relationship at the end of 2005 or thereafter. The clearly exaggerated early evidence of the defendant supports this conclusion. However, if I am wrong in this it is necessary to consider the question at the date of death and I now turn to this.

45 The question here to be decided is whether if the relationship existed in December 2005 it came to an end after that and prior to death. Here two matters are important. The first is the relationship with Ms Burton and the second is the agreement for transfer of shares and interest in property. The defendant said that she did not know that the person, Buda, was a woman until Rita told her that. She thought, she said, that this person was some sort of male spiritual guru. Although there was really no cross-examination on this I find this evidence difficult to accept. The defendant knew that the deceased was not always faithful to her. She knew that he went around with other women. I have found that she knew of the relationship with Mrs O’Brien and she knew of past relationships with women called Florence and Deborah. She said she was concerned about his continuing relationship with Deborah. It is unlikely that once the visits extended to a few days every two weeks that the defendant could have thought that they were to visit a male masseur and spiritual friend. But this does not really matter as one party can end a de facto relationship. Thus the question has to be decided whether the relationship of the deceased with Ms Burton was just a dalliance within a de facto relationship or whether it was more and ended the relationship of living as a couple.

46 It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.

47 This conclusion is supported by the evidence as to sale of the shares and proposed transfer of the interest in Redfern. The importance of this is of course that such transactions would separate completely the financial interests of the parties. In some ways the proposal for the defendant to become the licensee supports this as being an ordinary business arrangement. I do not accept the defendant’s oral evidence that a reason for the transfer of shares was to make it easier to borrow money. It does not make sense. I do accept her other evidence as to the anger of the deceased as a result of police action for breach of the Liquor Act at the hotel. I accept that was why she placed the lock on the door of her room in Zetland. In addition I consider that the defendant’s evidence that she made no complaint of the visits to Ms Burton as in exchange for that she had an opportunity on the other weeks when the deceased was working in the hotel to visit her own children, is almost an acknowledgement by her that the relationship had fallen apart.

48 The result is that if I am incorrect about the relationship having come to an end by December 2005 I consider that it did not exist at the date of death.

49 It follows that the cross-claim should be dismissed. The plaintiffs will be entitled to a grant of letters of administration subject to compliance with the rules. As no solemn form grant is involved the plaintiffs’ claim under the statement of claim should be dealt with by the registrar and I will so order.

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