Re Gdanski; McLaren v Gdanski
[2022] VSC 565
•21 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2021 03566
IN THE MATTER of Part IV of the Administration and Probate Act 1958 (Vic)
- and –
IN THE MATTER of the Estate of LAWRENCE MAXWELL GDANSKI, deceased
BETWEEN:
| LEANNE TRACEY MCLAREN | Plaintiff |
| v | |
| JEFFREY GDANSKI (In his capacity as executor and trustee of the Estate of LAWRENCE MAXWELL GDANSKI, deceased) | Defendant |
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JUDICIAL REGISTRAR: | Englefield JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2022 |
DATE OF RULING: | 21 September 2022 |
CASE MAY BE CITED AS: | Re Gdanski; McLaren v Gdanski |
MEDIUM NEUTRAL CITATION: | [2022] VSC 565 |
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FAMILY PROVISION — Summary judgment — Whether the plaintiff may be able to establish eligibility to make a family provision — Eligibility as ‘domestic partner’ at the time of death — Eligibility as ‘former domestic partner’ — Significance of the nature and extent of common residence — Necessity for cohabitation — Procedural fairness — Civil Procedure Act 2010 (Vic) ss 62, 63(2)(b) and 64 — Administration and Probate Act 1958 (Vic) ss 3(1), 3(3), 90(a), 90(e) — Relationships Act 2008 (Vic) s 35(2) — Family Law Act 1975 (Cth) ss 4AA, 90SB.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Rizzi | Maripa & Co Lawyers |
| For the Defendant | C H Sparke KC | Madgwicks |
TABLE OF CONTENTS
Introduction................................................................................................................................... 1
The estate........................................................................................................................................ 2
Summary of plaintiff’s evidence................................................................................................. 3
First phase of the relationship..................................................................................................... 3
Move to Gippsland....................................................................................................................... 5
Second phase of the relationship................................................................................................ 5
Eligibility under the Act............................................................................................................... 9
Current partner.................................................................................................................... 9
Former partner................................................................................................................... 14
A question of fact............................................................................................................... 16
Relevant period.................................................................................................................. 16
Summary judgment principles................................................................................................. 16
Consideration.............................................................................................................................. 19
Common residence............................................................................................................ 19
Evidence generally............................................................................................................ 21
Former partner................................................................................................................... 23
Procedural fairness to the defendant.............................................................................. 24
Conclusion.................................................................................................................................... 25
JUDICIAL REGISTRAR:
Introduction
This is an application by the defendant for summary judgment in a family provision claim made under Pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’), on the basis that the plaintiff is ineligible to make the claim.
The plaintiff asserts that she is eligible to make the claim as the ‘domestic partner’ of the deceased at the time of death (‘current partner’).[1] This application also dealt with a potential alternative basis of eligibility. That is, if a domestic relationship is found to have existed and to have terminated prior to the death of the deceased, then the plaintiff may claim to be a ‘former domestic partner’ who, at the time of the deceased’s death, would have been able to take proceedings under the Family Law Act1975 (Cth) (‘FLA’) but is now prevented from doing so because of the death of the deceased (‘former partner’).[2]
[1] The Act s 90(a) of the definition of eligible person.
[2] Ibid s 90(e) of the definition of eligible person.
The parties generally agreed as to the relevant principles that apply to a summary judgment application and on the definition of a domestic relationship in the Act. They differed on whether the facts as put in the plaintiff’s affidavits met the definition of ‘domestic partner’ at any time, regardless of whether the eligibility was based on being a current partner or a former partner, as demonstrated by this application. Significantly, this case did not involve full‑time (or perhaps any) cohabitation. The plaintiff and the deceased spent time together over many years sharing aspects of their lives, including sexual intimacy, future plans, family functions and weekend breakfasts together. Relative to the plaintiff’s lifestyle, the deceased was financially generous to her. The key question for this application is whether or not a relationship of such longevity and closeness has a real prospect of being found to be a ‘domestic relationship’ within the relevant definitions.
This question must be determined by trial. The depth of the bond between the plaintiff and the deceased can only really be assessed after hearing evidence. It is impermissible for me to summarily dismiss on a conclusion that the plaintiff is a mere longstanding close friend who has no real prospect of satisfying the definition of current partner or former partner as this requires me to make factual findings and apply those to an evolving legal concept[3] in a summary hearing. Therefore, I will dismiss the summary judgment application, for reasons expanded upon below.
[3]That the legal concept of domestic relationships has been in flux may be demonstrated by recent overturning of a decision of the Full Court of the Family Court of Australia by the High Court in Fairbairn v Radecki (2022) 400 ALR 613 (‘Fairbairn v Radecki’).
The estate
Lawrence Maxwell Gdanski, deceased, died on 8 November 2020, aged 69 years, having never married and leaving no children.
By his will, made on 13 July 2012 (‘Will’),[4] the deceased appointed a brother, the defendant in this proceeding, as his executor and left his estate essentially as follows:
[4]Exhibit LTM-1 to the affidavit of Leanne Tracey McLaren sworn 26 November 2021 (‘Plaintiff’s First Affidavit’).
(a) a legacy of $50,000.00 to another brother, Arthur John Gdanski (‘Arthur’);
(b) a legacy of $50,000.00 to the plaintiff, describing her as ‘my friend’;
(c) all the shares in two private companies to the defendant (the Will also purports to appoint the defendant as secretary and director of the companies and, in respect to one company which is described as a trustee, purports to declare the defendant the ‘beneficial owner’ of the trust capital and income); and
(d) the residue to the defendant.
The defendant obtained probate of the Will on 21 April 2021. The probate inventory showed an estate valued at approximately $2.4 million,[5] including two real properties in Whittlesea and substantial bank deposits. The plaintiff values the shares in the non‑trustee private company at $4.7 million, giving the value of the estate at approximately $6.9 million,[6] but the basis of this valuation is unknown.
[5]Ibid.
[6] Ibid [6(e)].
Summary of plaintiff’s evidence
The following summary is derived from the two affidavits sworn by the plaintiff.[7] The plaintiff also relied on four other short affidavits in support deposed by her mother, a brother, and two friends.[8] These witnesses’ affidavits give vague, undated, general observations and conclusions. In particular, the witnesses do not assist in respect to the period of two years or so prior to the deceased’s death. Nothing has been added to this summary from those witnesses. For the purposes of this application for summary judgment, the plaintiff’s evidence is accepted and taken at its highest.[9]
[7]Plaintiff’s First Affidavit (n 4); Affidavit of Leanne Tracey McLaren sworn 18 May 2022 (‘Plaintiff’s Second Affidavit’).
[8]Affidavit of Dorothy Roselyn Maher sworn 17 May 2022; Affidavit of Greg Owen McLaren sworn 17 May 2022; Affidavit of Andrea Louise Kaddis sworn 16 May 2022; Affidavit of Wally Rogers sworn 12 April 2022.
[9]Plaintiff’s Outline of Submissions dated 30 June 2022 [13]; Defendant’s Outline of Submissions dated 14 June 2022 [15] (‘Defendant’s First Submissions’); Veniou v Equity Trustees Ltd [2018] VSC 832 [3]; Dunn v Perpetual Trustee Co Ltd [2021] VSC 755 [17].
First phase of the relationship
The deceased and the plaintiff met in 1995, when the plaintiff was aged in her late 20s and the deceased was in his mid-40s. In June 1995, they began ‘dating’. The relationship developed quickly and the deceased began to spend three nights a week at the plaintiff’s home. They ‘clicked’. Weekends were spent travelling around regional Victoria, viewing and purchasing tractors and accessories (one of the deceased’s hobbies), working on his parents’ farming properties, going to ’Trash n’ Treasure’ markets and visiting each other’s family and friends.[10]
[10]Plaintiff’s First Affidavit (n 4) [19]–[22].
By 1996, the plaintiff had met the deceased’s parents and his brother, Arthur, as well as Arthur’s family, who were then living with the deceased’s parents. The deceased’s parents fell on ‘hard times’ during this year. To assist, the deceased purchased his parents’ home in Kew from them and gave them a life tenancy to remain there as their home. The plaintiff and the deceased bought a pet dog together, who travelled with them when feeding stock at his parents’ farming properties. The deceased often told the plaintiff that he loved giving her things because he loved seeing her smile and be happy.[11]
[11] Ibid [23], [24], [26], [29].
At some point, possibly in the 1990s, the plaintiff met the defendant and his wife, who then lived in the Philippines.[12]
[12]Ibid [25].
In 1997, the plaintiff moved in with the deceased at his home in Whittlesea. The deceased’s house was ‘overflowing with stuff’ and when the plaintiff tried to tidy or sort, even in the smallest of ways, he became agitated and anxious. The plaintiff tried to support the deceased to get help for this issue, but that did not work. After about three months, they went back to spending ‘more nights’ at the plaintiff’s home, as it was more ‘liveable’. Indeed, the deceased’s home was not suitable for cooking. This was a ‘part of [the deceased] that he couldn’t change and something that prevented the plaintiff and the deceased from spending more time at his place’.[13]
[13] Ibid [30], [31].
Neither of them wanted children and, although they discussed marriage, they chose not to marry. They were happy together. They told each other that they were ‘soul mates’ and who had decided to be together for life.[14]
[14] Ibid [32].
In or about 1997, they ‘found’ the plaintiff’s former home in Chum Creek. It was well located for the deceased and had space for their pets. The deceased loved this property and he called it their ‘love shack’. They spent most of their time there, although still stayed at the deceased’s home when it suited them.[15]
[15]Ibid [33], [34].
In the late 1990s, they looked at properties to buy in Kinglake to operate a small tractor business, but could not find anything suitable.[16]
[16] Ibid [36].
In 2000, the deceased bought the plaintiff a car, which was a ‘lemon’ and he replaced it in 2001 with a larger car and a small trailer.[17]
[17] Ibid [37].
They enjoyed a relationship which was ‘unique’ to them and it worked. They supported each other emotionally, were affectionate, were sexually active, laughed together and ‘vented’ about troubles. They were very busy, but made time for family functions, barbeques or festive gatherings.[18]
[18]Ibid [35], [38].
In around 2002, the deceased and the plaintiff ‘separated’. The deceased had formed a new friendship with a man who hung around him daily. The plaintiff and the deceased’s new friend clashed. Within a few months of this new friendship forming, the deceased and the plaintiff decided to go their separate ways.[19]
[19]Ibid [39].
Move to Gippsland
In 2007, the plaintiff sold her house in Chum Creek and purchased a smaller home locally. Then, in 2008, following a number of medical issues, including an operation, the plaintiff sold that property and moved to Moe, as it was her ‘only option’ at the time to be able to ‘afford to live’. The plaintiff, now aged 56 or 57, still lives in Moe, has a mortgage and serious health issues, but is employed.[20]
[20]Ibid [40], [41], [91]–[93], [95].
Second phase of the relationship
In January 2009, the deceased tracked the plaintiff down via her brother and knocked on her door in Moe. He gave her Christmas presents, said he was sorry about what had happened in 2002 with his friend, and that he wanted to get back together again ‘like old times’ as he missed his ‘soul mate’. They told each other that they had each seen other people, but were not happy being apart. He gave her the sad news about the death of his mother, who was described in fond terms by the plaintiff. They agreed to ‘start again where [they] had left off’. They only told close family, including the deceased’s brothers.[21]
[21] Ibid [42]–[45].
In 2009, the plaintiff’s medical issues were taking a toll and she was not always working full time. However, the plaintiff did a lot of casual work in Melbourne and was able to ‘catch up’ with the deceased ‘often’.[22]
[22] Ibid [46].
At some point, the deceased had a falling out with his widower father and the plaintiff acted as the ‘go-between’ for the two men, delivering food while the deceased waited in the car. The responsibility of care for the deceased’s father fell to the deceased and the plaintiff, as the deceased’s two brothers lived away from Melbourne. The plaintiff felt loved as a daughter-in-law by the deceased’s father. Their loving relationship continued until the death of the deceased’s father in 2010.[23]
[23] Ibid [47], [48].
Following the deceased’s father’s death, a dispute arose with a cousin involving a private company. The plaintiff attended meetings with close family members with professional advisors. The plaintiff also assisted with the physical work of clearing several properties for sale, including a factory, and with the handling of paperwork for completion of taxes. During this difficult time, the deceased and the plaintiff went to ‘Trash n’ Treasure’ markets most Sundays for the fun of bartering, having some laughs and reliving their exploits over lunch at KFC.[24]
[24] Ibid [49]–[53].
In 2014, the deceased and the plaintiff decided to sell his parents’ former home in Kew. The defendant was living in this property following a divorce. Once sold, the defendant had his ‘share’ of the sale proceeds of the Kew property placed in a trust. This trust purchased a property a few doors from the deceased’s home and the defendant moved his belongings there and returned to the Philippines. Possibly around this time, the deceased and the plaintiff also helped another of the deceased’s brothers, Arthur, find ’acreage’ as a residence for himself.[25]
[25] Ibid [54], [60], [61].
Perhaps also in or after 2014, the plaintiff advised the deceased against selling his parents’ former farming property at Rockbank, even though caring for stock and other maintenance was stressful and time‑consuming. The deceased apparently sold despite the plaintiff’s views. They had a dream to buy acreage, with room to be self‑sufficient, keep animals and show the deceased’s tractor and parts collection. The sale of the Rockbank property bought this dream closer.[26]
[26]Ibid [55]–[57].
In 2014, the deceased bought the plaintiff a Mitsubishi Triton vehicle (‘Triton’), with a canopy for the dogs, at a car auction.[27]
[27]Ibid [59].
In 2015, the deceased and the plaintiff decided to buy a house together at Whittlesea, however, they were outbid on the sale. They decided to wait for a suitable lifestyle property on acreage. They spoke of this plan often in the next couple of years. They purchased a pet corella together, which became part of their family unit.[28]
[28] Ibid [64], [66].
One of the strongest aspects of the relationship was their sense of humour. When they were in their own world, they would laugh about the silliest things. The plaintiff loved cooking for the deceased and he said that the highlight of his week was the huge cooked breakfast which the plaintiff made him most Sundays. The plaintiff and the deceased both worked full time so their lives were always busy but they would find time for each other. The plaintiff and the deceased had ‘their own bubble away from everyone’. According to the plaintiff, a night on the couch cuddling and watching a movie was bliss to the both of them.[29]
[29] Ibid [65], [67].
In 2016, the deceased gave the plaintiff $20,000.00 to fix the roof of her home in Moe. He also paid for the construction of a patio. He often paid for food, fuel and other things. This financial support continued until they fought a few weeks before his death.[30]
[30] Plaintiff’s Second Affidavit (n 7) [13], [14].
In or about June 2017, the deceased had a fall and broke his ribs. Scans showed he had cancer in his right kidney, requiring an operation. Over the next 12 months, they spoke of their dreams. They said their relationship was unstoppable. The plaintiff told the deceased that she would look after him permanently after his operation. Eventually, the deceased agreed to have the operation, stayed in hospital less than a week and recovered well, although he was less agile. After this, they often discussed buying their forever home, and thought it would be good for their health. They talked daily and saw each other as ‘much as we could’.[31]
[31] Plaintiff’s First Affidavit (n 4) [76], [77].
In 2018, the deceased purchased a property in Whittlesea, telling the plaintiff this property was for them to move into together. For reasons that were never explained, the deceased had to sell this property before they were able to move in and their plans for moving in together were placed on hold again.[32]
[32] Ibid [71].
In 2018, the deceased purchased another car for the plaintiff as her previous vehicle, the Triton, was getting old.[33]
[33] Ibid [72].
In late 2018, the plaintiff’s health deteriorated again and she was unable to travel long distances due to pain. The plaintiff then had to give up work in Melbourne, so she saw a bit less of the deceased although they spoke often on the phone and he was always there for her emotionally and financially. Whenever the plaintiff stayed with the deceased he made sure the plaintiff went home with money, to pay for fuel and food. He gave her fruit and vegetables he bought at the market. He put money into her bank account if needed. They still discussed about their future plans to buy a home on acreage.[34]
[34]Plaintiff’s First Affidavit (n 4) [73]; Plaintiff’s Second Affidavit (n 7) [8]–[12].
At an undated time, the deceased was looking to upgrade the plaintiff’s vehicle by selling the two vehicles she had and purchasing another. In the end, they could not find anything suitable, but he sold the older of the plaintiff’s vehicles, the Triton, for $3,000.00 and gave $1,500.00 of the sale proceeds to the plaintiff, keeping the remainder for when she needed the money (‘balance of the Triton money’).[35]
[35] Plaintiff’s First Affidavit (n 4) [78].
In 2020, the COVID-19 pandemic ‘hit’ Melbourne. The deceased was under ‘lockdown’ and the plaintiff could not see him as much as she resided in regional Victoria. ‘Around this time’ another of the deceased’s friends was ‘coming around’ every day to the deceased and ‘pressuring’ him to lend this friend’s son $350,000.00, as ‘the banks would not finance him’. The deceased and the plaintiff argued about this request. The plaintiff told the deceased she would speak to this friend herself and ‘set him straight’. On 20 September 2020, the plaintiff and the deceased had another argument about this friend. The plaintiff told the deceased that she thought this friend had damaged her car while it was at the deceased’s home. The deceased would not give the plaintiff his friend’s telephone number so the plaintiff could ‘have a go’ at him, and this upset the plaintiff greatly.[36]
[36] Ibid [79], [80].
On 23 September 2020, the plaintiff was so upset that she sent the deceased a text message asking him to deposit the balance of the Triton money into her bank account and telling the deceased that she ‘never wanted to see him’(‘text message’).[37]
[37] Ibid [81].
The plaintiff regretted sending the text message and did not mean what she wrote. The plaintiff wanted to see the deceased every day after she sent the text message, but she was still upset with him. The plaintiff felt the friend they had argued over was influencing the deceased’s decisions on his relationship with the plaintiff. Finally, the plaintiff feels that if COVID‑19 restrictions had not kept them apart, they may have worked out their issues, as they had done in the past.[38]
[38] Ibid [82].
About six‑and‑a‑half weeks later, on 8 November 2020, the deceased died. The plaintiff gives no evidence of any further contact between them after sending the text message.
Eligibility under the Act
Current partner
The definition of ‘domestic partner’ in the Act relevantly means a person who, although not married to the deceased person, was ’living with’ the deceased person at the time of the deceased person’s death ’as a couple on a genuine domestic basis (irrespective of gender)’ and who ‘had lived with’ the deceased person ’in that manner continuously for a period of at least 2 years immediately before’ the deceased person’s death.[39]
[39]The Act ss 3(1) and 90; this definition applies as the relationship was not registered under the Relationships Act 2008 (Vic) and no child was born to the relationship who was aged less than 18 years at the time of the death of the deceased.
For the purposes of this definition, in determining whether or not the plaintiff was the deceased’s ‘domestic partner ’all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in s 35(2) of the Relationships Act2008 (Vic) (‘Relationship Act’) as may be relevant in this case.[40]
[40] The Act s 3(3).
The matters in s 35(2) of the Relationships Act are:
(a) the degree of mutual commitment to a shared life;
(b) the duration of the relationship;
(c) the nature and extent of common residence;
(d) whether or not a sexual relationship exists;
(e)the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;
(f) the ownership, use and acquisition of property;
(g) the care and support of children;
(h) the reputation and public aspects of the relationship.
None of the matters are determinative, but all provide colour or significance, especially in combination.[41] Living together does not have to occur at a single location, or be continuous, but requires elements of interaction or sharing while engaging in activities associated with occupying the same place.[42] Visiting, even frequently and repeatedly, not for the purpose of residing, may be insufficient.[43]
[41] Re Ho; Liang v Broadfoot [2020] VSC 168 [9].
[42] Smoje v Forrester [2017] NSWCA 308 [42].
[43] Yesilhat v Calokerinos [2021] NSWCA 110 [152].
On the other hand, cohabitation may not be required by the definition of the equivalent relationship in s 4AA of the FLA. In Fairbairn v Radecki,[44] the High Court[45] observed:
[44] Fairbairn v Radecki (n 3).
[45] Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ.
33 Living together for the purposes of s 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. But cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.
…
39 The language of s 4AA of the Act and its reference to “living together” requires no different approach to determining whether a relationship exists of the kind defined. “Living together”, consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant; inevitably some may have greater prominence than others. A conclusion that a de facto relationship has ended may also arise because of factors not listed in s 4AA(2). Such a conclusion is mandated by s 4AA(3) and (4). In particular, s 4AA(4) is a statutory recognition that what may constitute a genuine de facto relationship is not be determined in the same way in every case by reference to rigid criteria that must always be satisfied. In that respect, the language of s 4AA(2)(b) does not assume that every de facto relationship must have a “common residence” to some “extent” and of some “nature”. Such a construction is entirely denied by s 4AA(3).(citations omitted).[46]
[46] Fairbairn v Radecki (n 3) [39].
In Yesilhat v Calokerinos (‘Yesilhat’)[47] a family provision claim, White J dealt with a summary judgment application against a plaintiff who relied for eligibility on his evidence of a de facto relationship with the deceased. Over a period of around 14 years, the plaintiff claimed to have visited the deceased, a middle‑aged pharmacist, at the deceased’s pharmacy in the evenings. The relationship was said to be a secret and they did not visit each other’s homes. During the relationship, the plaintiff, initially a teenager, was married, divorced and re-married. The plaintiff said his marriages were entered into for cultural reasons. Of course, the relevant legislation does not require an exclusive relationship to meet the definition, but the complete lack of any time spent at each other’s residences raised a focus on whether there was any need to show a ‘common residence’. White J found that it is arguable that a couple may ‘live together’ by spending limited periods at a place which is not a ‘common residence’.[48] His Honour considered what was determinative is the relationship of ‘coupledom’, which involves the merger of two lives.[49]
[47]Yesilhat v Calokerinos [2015] NSWSC 1028; see also Calokerinos v Yesilhat [2017] NSWSC 666; Yesilhat v Calokerinos [2021] NSWCA 110.
[48] Yesilhat v Calokerinos [2015] NSWSC 1028 [36].
[49] Ibid [37] (White J), citing NSW Trustee and Guardian v McGrath [2013] NSWSC 1894 (Young AJ).
A de facto relationship does not require any set proportion of time, such that where a person is in two (or more) spousal relationships, they may spend less than half their time with a particular de facto partner.[50] The Queensland Court of Appeal has twice noted that while cohabitation in a common residence is not necessary to establish a de facto relationship, it will be an ‘exceptional’ case where two people who are not living together in a common residence at all will be found to be in a de facto relationship.[51] In the end, White J found in Yesilhat it was arguable that the plaintiff’s claim was such an ‘exceptional’ case. The summary judgment application was dismissed.
[50]Jonah v White [2011] FamCA 221; (2011) 258 FLR 236 [47] per Murphy J.
[51]KQ v HAE [2007] 2 Qd R 32 (McMurdo P, Keane and Holmes JJA); FO v HAF [2007] 2 Qd R 138 (McMurdo P, Keane JA and White J agreeing).
The plaintiff in Yesilhat failed to establish eligibility at trial.[52] For the purposes of this application, that outcome is complicated by serious adverse findings regarding the plaintiff’s credibility. For example, the plaintiff’s evidence of a sexual relationship with the deceased was simply disbelieved by the trial judge.[53]
[52]Calokerinos v Yesilhat; Yesilhat v Calokerinos [2017] NSWSC 666.
[53] Ibid, see, eg, [752].
The plaintiff in Yesilhat then appealed the trial decision. On appeal, Brereton JA reviewed the relevant cases and concluded relevantly that ‘living with’ another person for the purposes of a de facto relationship requires, at least to some extent, mutual living in a common residence, although not necessarily full time.[54] Again, this outcome is complicated for present purposes by the lack of factual findings in favour of the plaintiff/appellant. There was no evidence of a relationship of emotional closeness, financial support and sexual intimacy where the parties to the relationship for cultural and social reasons did not share a common residence. The plaintiff in Yesilhat failed to show at trial any sharing or merging of lives as partners, any burden of commitment to the needs of the other, as well as no common residence.
[54]Yesilhat v Calokerinos [2021] NSWCA 110 [152] (Brereton JA) (additional reasons); Bathurst CJ agreeing; the appeal was dismissed by the Court, (Macfarlan JA, Bathurst CJ and Brereton JA agreeing) (primary reasons).
As noted above, the High Court in Fairbairn v Radecki while confirming that ‘living together’ will often involve cohabitation of some residence, determined that cohabitation is not a necessary feature of ‘living together’ within the relevant statutory definition.[55] That is, cohabitation is not ‘an irreducible minimum’ which all de facto relationships must show.[56] The phrase ‘living together’ means sharing life as a couple, not cohabitating.[57] A couple may cohabit a common residence but the relationship has ended, commonly called ‘separation under one roof’.[58] The High Court in Fairbairn v Radecki was referred to the appeal decision in Yesilhat, as to the requirement of cohabitation for the existence of a de facto relationship, and declined to consider the correctness of that decision, as the underlying facts differed between the two cases.
[55]Fairbairn v Radecki (n 3) [35].
[56]Ibid.
[57] Ibid [39].
[58]In Crabtree v Crabtree (1963) 5 FLR 307, the Full Court of the Supreme Court of New South Wales concluded that a husband and wife could live “separately and apart” even when they both resided in the same home.
In these circumstances, the significance of ‘cohabitation’ or ‘the nature and extent of a common residence’ in determining the existence of a domestic relationship may fall back to the decisions of the Queensland Court of Appeal, including FO v HAF[59] where Keane JA stated:
The circumstances of human affairs are so various that the courts should refrain from attempts to define more precisely than the legislature the kind of relationship regulated by Pt 19 of the PLA. Nevertheless, as this Court said in KQ v HAE, it will be an exceptional case where two people who have not lived in a common residence, and who have not made actual provision for their mutual support, can be said to have been “living together as a couple on a genuine domestic basis”. A case is not rendered exceptional in this context merely because the parties intend, eventually, to live together as a couple. That is simply a case where an existing courtship has not matured into the kind of commitment in which the parties have so merged their lives that they were, for all practical purposes, a married couple. Just as people who are affianced cannot be confused with people who are married, so people who intend to live together as a couple should not be confused with people who do live together as a couple.[60]
[59] FO v HAF [2007] 2 Qd R 138.
[60]Ibid, [26] (Keane JA, McMurdo P and White J agreeing).
Former partner
A ‘former domestic partner’ is eligible under the Act if, at the time of the death of the deceased, they would have been able to take proceedings under the FLA and is now prevented from taking those proceedings because of the death of the deceased (or had commenced FLA proceedings and are prevented from finalising them due to the death of the deceased).[61]
[61] The Act s 90(e) of the definition of eligible person.
The first issue to be resolved is whether, for the purposes of this definition, the plaintiff must prove she had been a ‘domestic partner’ of the deceased within the meaning of the Act but ceased to be prior to his death; or whether the plaintiff must establish eligibility under the FLA exclusively, including that the former relationship meets the definition of ‘de facto relationship’ in the FLA.
Happily, the definition of a ‘de facto relationship’ in s 4AA of the FLA has strong similarities to the definition of ‘domestic partner’ in the Act. The various ‘circumstances’ which apply to working out if persons are ‘living together’ as a ‘couple’ which are relevant to this case are generally the same as those set out in s 35(2) of the Relationships Act. By s 4AA(3) of the FLA none of those circumstance are determinative of the existence of a de facto relationship. Section 4AA(4) of the FLA permits a court to have regard to matters not listed. Section 35(2) of the Relationships Act achieves the same result by use of the word ‘including’.
The definitions in the FLA and the Act each require a relationship duration of at least two years, unless there is a minor child of the relationship.[62] However, proceedings may also be taken under the FLA where a party to a relationship of less than two years, without a child, has made a ‘significant contribution’ and failure to make an order would result in ‘serious injustice’.[63]
[62]The FLA s 90SB; The Act s 3(1) definition of unregistered domestic partner.
[63] The FLA s 90SB(c).
No proceeding may be taken under the FLA unless the de facto relationship has ‘broken down’.[64] That is, the former partners ceased to have ‘a relationship as a couple living together on a genuine domestic basis.’ The precise timing of a breakdown in de facto relationship can be difficult to determine, particularly where the parties have an ongoing relationship following a significant change or where separation in an emotional sense occurs without a physical separation. The date of a breakdown may be pivotal to determining the duration of the relationship or whether a time limit to bring proceedings under the FLA has been exceeded. There are no statutory criteria to apply to determine if a de facto or domestic relationship has ended.
[64] Fairbairn v Radecki (n 3) [4].
In Stanojevic v Riboskic, the Court of Appeal[65] dismissed an appeal which argued a ‘former domestic partner’ was ineligible to take proceedings under the FLA, as the deceased had acquired his only asset, a house, by inheritance after the end of the relationship. The Court of Appeal held that, notwithstanding that a court exercising power under the FLA may deal with ‘after-acquired property’ differently to property acquired during a relationship, the plaintiff was not precluded from bringing a proceeding under the FLA in respect to such property.[66] The question is not whether the person now applying as a ‘former domestic partner’ under Pt IV of the Act would have been successful if they had taken proceedings under the FLA, but whether an application under the FLA was available to them and is now prevented by death of the deceased.[67]
[65] Stanojevic v Riboskic [2020] VSCA 230 (Tate, Kaye and Emerton JJA).
[66] Ibid [74].
[67] Ibid [77], [78].
A question of fact
Whether a ‘domestic relationship’ or a ‘de facto relationship’ exists between two people is a question of fact. Whether it has broken down, or no longer exists, is also a question of fact.[68]
[68]Hibberson v George (1989) 12 Fam LR 725.
Relevant period
In this proceeding, for the plaintiff to succeed as a current partner, she must prove the existence of a relationship that satisfies the relevant definition, at least from 8 November 2018 to 8 November 2020, being two years up to the date of death of the deceased. At the time of hearing of this summary judgment application, the duration of relationship relied upon informally in the alternative by the plaintiff for eligibility as a former partner seems to be two years prior to the sending of the text message, or the period commencing on 23 September 2018. This is unclear.
For the purposes of this application, I will consider whether the plaintiff’s claim has no real prospect of success in respect to her evidence relating to the nature of the relationship in the period commencing 23 September 2018 and ending on 8 November 2020 (‘relevant period’).
Summary judgment principles
The parties concur as to the relevant principles, which I set out briefly below.
Summary judgment is available under s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’) where a claim has no real prospect of success. A ‘real prospect’ is more than a ‘fanciful chance’.[69] Power to summarily dismiss should be exercised with caution but consistently with the Court’s own obligations to give effect to the overarching purposes of the CPA, including the duty to avoid unnecessary costs and delay.[70] However, s 64 of the CPA permits the continuation of a proceeding despite it having no real prospect of success if the Court is satisfied that:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
[69]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27 [29], [35(a)].
[70] Ibid [35(d)].
Of particular note to this application, is the firm criticism of summary judgment applications in family provision claims made by White J in Yesilhat[71] from [14]–[23], including his observation that, in some other circumstances, a summary judgment application will ‘not even be entertained’ by the Supreme Court of New South Wales. In particular, at [14], White J set out as follows:
In Spencer v Commonwealth French CJ and Gummow J (at [21]) quoted with approval Lord Hope of Craighead in Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1 at [95] in relation to the equivalent power in England for summary disposition when his Lordship said:
“…it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, … that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.” (emphasis added by White J)
[71]Yesilhat v Calokerinos [2015] NSWSC 1028.
Other judges have also urged caution in respect to summary dismissal applications particularly when the issue in dispute involves the exercise of discretion, such as whether or not there was a moral duty to provide or whether provision left in the will was adequate and proper.[72] Such issues may need to proceed to trial, if unresolved by the parties. Nonetheless, where it is absolutely clear that a family provision claim has no real prospect of a favorable exercise of discretion, or is ‘bound to fail’, summary dismissal must be given.[73]
[72]Warren v McKnight (1996) 40 NSWLR 390, 396; El-Zaouk v Draybi [2010] NSWSC 1001 [16]–[25], [28], [32]; Wolff v Deavin [2012] NSWSC 1315 [35]–[38]; Jackson v Newns [2011] VSC 32 [11]; IMO the Will and Estate of William James Milburn (deceased) [2014] VSC 229 [34]; Bail v Scott-Mackenzie [2016] VSC 563 [42]; Innes‑Irons v Forrest [2016] VSC 782 [38].
[73]Re Rattle; O’Neill v Equity Trustees Ltd [2019] VSC 565 [58].
However, eligibility as a current partner or former partner does not involve the exercise of discretion, it is a determination of a factual question. As put by Leeming JA in Sun v Chapman:[74]
when Parliament insists that an eligible person be “living in a de facto relationship at the time of the deceased person’s death” as a precondition to the making of a family provision order, Parliament is not specifying a precondition which tolerates a range of outcomes but rather is prescribing a legal criterion which demands a unique outcome.[75]
[74] [2022] NSWCA 132 (Brereton JA agreeing [189]).
[75]Sun v Chapman [2022] NSWCA 132 [9] (White JA, with Leeming and Brereton JJA agreeing).
Summary judgment will be ordered more readily where the issue involves a pure question of law than where there is a disputed question of fact.[76] This application involves both a disputed factual question and the interpretation of a statutory definition of a particular form of human relationship (or two definitions, if the plaintiff adds a claim as a former partner). The facts will need to be determined prior to any consideration of how to apply the relevant definition, so this is primarily a factual dispute, which weighs against summary dismissal.
[76]Re Demediuk [2016] VSC 587 [18]; Mutton v Baker [2014] VSCA 43 [19] (‘Mutton v Baker’).
Finally, as the determination of eligibility in this case depends on the nature of a relationship between two people during the relevant period, I need to be satisfied that the plaintiff’s case ‘could not be altered by evidence at trial’ before striking it out.[77] Whelan JA put this succinctly in Mutton v Baker:[78]
Even if it is said that an issue is purely a question of law, the court should not strike out a claim on this basis if it is conceivable that some factual matter could emerge at trial which might alter the analysis.
[77]Uber Australia Pty Ltd v Andrianakis(2020) 61 VR 580 [36] (Niall, Hargrave and Emerton JJA).
[78]Mutton v Baker (n 76) [55] (Whelan JA).
Consideration
Common residence
Essentially, the defendant asks me to take two steps in determining his application. First, I am asked to find that the definition of ‘domestic partner’ in the Act requires ‘cohabitation’.[79] Then, I am asked to determine that the plaintiff’s case has no real prospect of success, as cohabitation cannot be established at trial on her evidence as it stands.
[79]Defendant’s First Submissions (n 9) [29], [31], [43]; Defendant’s Outline of Submissions, 12 July 2022 [14], [16], [17].
The defendant relies on interstate appellate decisions, as well as Forsyth v Sinclair,[80] together with first instance decisions in Victoria, to support the proposition that all of these cases[81] show:
even in unconventional living arrangements, an element of cohabitation will ordinarily be found in order to be eligible. The eligibility requirement is that the couple be ‘living with’ each other, and, even allowing for the flexibility of modern relationships there needs to be something which satisfies that requirement.[82]
[80][2010] VSCA 147.
[81]Re Ho; Liang v Broadfoot [2020] VSC 168; Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324; Re Sigg (deceased) [2009] VSC 47; Maroti v Ristic [2015] VSC 3; Ristic v Maroti (No 2) [2014] VSC 540.
[82] Defendant’s First Submissions (n 9) [29].
The plaintiff submits that full time physical cohabitation in a single residence is not an essential element to prove a domestic relationship and relied on many of the same cases as the defendant to support this submission. Impliedly, the plaintiff accepted the defendant’s position that, at least part-time, a common residence is required. Essentially, the plaintiff submits that I ought infer that, despite the absence of direct evidence, the couple did cohabit to some extent in the relevant period. For example, the plaintiff relies on evidence of sharing Sunday morning breakfasts to support the inference that overnight visits occurred.[83]
[83]Transcript of Proceedings, McLaren v Gdanski (Supreme Court of Victoria, S ECI 2021 03566, Englefield JR, 13 July 2022) 45 [28]–[31], 46 [1]–[6] (‘Transcript’).
It is true that significant flexibility regarding the element of cohabitation is easily found in any recent decision regarding the concept of current partner. The defendant’s criticism is that in this case there was no cohabitation at all, even part time, since the brief period of three months prior to 2002 and that this absence is fatal to the plaintiff’s claim.
At times, the defendant’s submissions appear to treat words ‘living with’ in the definition in the Act as synonymous with cohabitation, making cohabitation a mandatory factor to be established by any person asserting a domestic relationship. Yet, the Act requires the plaintiff, in order to be eligible as a ‘domestic partner’, to show she was ‘living with’ the deceased ‘as a couple on a genuine domestic basis’ having regard to ‘all the circumstances of their relationship’, including, among other things, the nature and extent of any common residence. All the circumstances of the relationship must be taken into account, a mandatory phrase.[84] This means that circumstances such as the deceased’s living conditions, their lifestyles, the plaintiff’s health and the impact of COVID‑19 restrictions, among other things, must be considered reaching a conclusion as to the nature of their relationship. At the same time, the nature and extent of a common residence may be taken into account, if relevant, among other factors, but is not a mandatory factor. The definition of domestic partner, including any necessity for a common residence, must be construed consistent with ‘the reality that human relationships are infinitely mutable’.[85] For these reasons, I am unable to accept the submission on a summary judgment application that I should construe the Act to find that some unspecified minimum ‘cohabitation’ is a necessary element to eligibility as a current or former partner.
[84] The Act s 3(3) and s 35(2) Relationships Act 2008 (Vic).
[85] Fairbairn v Radecki (n 3) [28].
As to whether there is any evidence of ‘cohabitation’, it is true that the plaintiff is largely silent on the key issue of what time, if any, the plaintiff and the deceased spent at each other’s residence during the relevant period and on how, during such times, they were said to be sharing their lives ‘as a couple’ in a common residence. The defendant submits that the plaintiff must be held to her evidence, such as it is, and this point should be determined against her on a summary basis.[86] The plaintiff submits that, for the purposes of this application, her evidence should be taken as accepted and taken at its highest; and that the defendant’s criticisms of her evidence offends this principle. However, I accept the defendant’s submission that the evidence on this point is unclear, despite the presumption in favour of the plaintiff’s evidence in this application. It is not possible, on the present poor state of the plaintiff’s evidence, to reach any conclusion as to the nature and extent of any common residence during the relevant period. Despite this serious gap in the plaintiff’s evidence, I cannot summarily dismiss her claim on this point. Such a conclusion risks being based as much on the quality of the preparation of the affidavits, as it is on the actual circumstances of the relationship in question. The evidence may improve.
[86] Transcript (n 83) 14 [6], 62 [12]–[23], 65 [12]–[15], 65 [17]–[18], [20]–[22], 68 [17]–[31].
Finally, on the question of common residence, I note that generally, the more there is in dispute between the parties, the stronger the need to allow a trial.
Evidence generally
The defendant also criticises the quality of the plaintiff’s evidence as to the nature and quality of the relationship generally, submitting that the evidence does not disclose a relationship that could be considered a domestic relationship under the Act, rather it shows two longstanding friends, without the quality of shared life or merged life or coupledom that is required. The defendant submits there is no pattern of a shared life, rather a friendship that shifted in its closeness over time.
The defendant also relies on the burden of proof resting on the plaintiff, which means that an absence of evidence which establishes the existence of a relationship within the relevant definition, her claim should be dismissed.[87] The burden of persuasion in this application rests on the defendant who, to succeed, must establish the plaintiff has no real prospect of success.
[87] Ibid 7 [27]–[31], 8 [12]–[13], 10 [1]–[5].
The defendant’s submission that it is impermissible for me to draw inferences on the plaintiff’s material is a difficult one.[88] A trial judge may draw inferences, even if the defendant is correct that on a summary dismissal application, I may not. Therefore, I must give allowances for that inference making in considering the plaintiff’s prospects of success. For example, as explained by Gageler J in Henderson v Queensland:[89]
Generally speaking, and subject always to statutory modification, a party who bears the legal burden of proving the happening of an event or the existence of a state of affairs on the balance of probabilities can discharge that burden by adducing evidence of some fact the existence of which, in the absence of further evidence, is sufficient to justify the drawing of an inference that it is more likely than not that the event occurred or that the state of affairs exists.[90]
[88] Ibid 65 [16]–[27], 69 [1]–[14].
[89](2014) 255 CLR 1 [89] (Gageler J).
[90]See also Jones v Dunkel [1959] HCA 8 (Dixon CJ).
There is little doubt that the plaintiff’s material does not adequately present the interactions between her and the deceased in the relevant period. The period 2018 to 2020 occupies only two pages of her first affidavit. Many events are undated, which makes assessing the merit of the claim even more difficult. The plaintiff’s second affidavit, filed after service of this application for summary dismissal, includes eight paragraphs expanding on her first affidavit. These eight paragraphs occupy less than a‑page‑and‑half. Six of these eight paragraphs deal only with financial ‘support’ or ‘help’. About half of the plaintiff’s second affidavit deals with events that occur after the deceased’s death, which show her as a key person within the family and in close contact with the defendant regarding the estate in the months immediately after the deceased’s death. However, it is not determinative that the defendant turned to the plaintiff for support at that difficult time.
The supporting affidavits are unimpressive. Collectively they give the unfortunate impression that none of these witnesses have any direct knowledge of the facts and circumstances of the relationship between the plaintiff and the deceased in the relevant period.
Essentially, the defendant seeks to bind the plaintiff to a few short paragraphs in her affidavits, to determine the nature and quality of the relationship with the deceased, especially given the plaintiff knew that this application was pending.[91] As set out above, for the purposes of a summary dismissal, I must take the plaintiff’s evidence at its highest and if that is arguably not enough to get across the low hurdle of a ‘real prospect of success,’ give allowance for the possibility that evidence may emerge at trial which alters that analysis. On this basis, I cannot dismiss the plaintiff’s claim on the basis her material is indeed ‘the best’ she can do. It is at least possible that detailed and cogent evidence establishing the existence of a domestic relationship in the relevant period may be available and that some of the failings of the plaintiff’s material rests with her lawyers. The scant details that do emerge show support for one another regarding health, transportation and general needs; financial assistance to the plaintiff by the deceased; expressions of commitment to a future life together, as well as a longstanding ongoing relationship of closeness and apparently genuine care. Periods of reduced physical contact are ascribed by the plaintiff to ill health or government restrictions due to the COVID‑19 pandemic. Arguments, and perhaps even a separation, can support the existence of a relationship of depth, rather than a more superficial relationship in which arguments or quarrelling are incongruous.[92]
[91] Transcript (n 83) 14 [6], 62 [12]–[23], 65 [18]–[22].
[92]See, for example, treatment of selfishness and infidelity in Bar-Mordecai v Hillston [2004] NSWCA 65, [125] (Mason P, Tobias JA and Davies AJA), overturning the trial judge’s decision that the plaintiff was ineligible.
I do not have to be convinced that the plaintiff will succeed at trial to allow her claim to continue. Rather the defendant must convince me that the plaintiff has no real prospect of success. As explained long ago, but often still cited, by Dixon J in Cox v. Journeaux (No 2),[93] in relation to a strikeout application:
The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed. A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender. It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped.
[93] (1935) 52 CLR 713, 720.
Former partner
The defendant denies that the plaintiff could be a former partner, as he argues there was never a ‘domestic relationship’ between the plaintiff and the deceased. In particular, there was no concession that the first phase of the relationship (prior to 2002) meets the relevant definition. Therefore, the defendant rejects any need to consider eligibility under the FLA. In addition, the defendant relies on the absence of this category of eligibility in the plaintiff’s originating motion to submit that the plaintiff is unable to advance this alternative category of eligibility at trial.
The plaintiff’s main focus was on her claim to have been a current partner, despite sending the text message some weeks prior to the death of the deceased. The plaintiff’s counsel seemed content to simply run the trial however it unfolded without providing clarity on whether the plaintiff will rely on eligibility as a former partner in advance.[94]
[94] Transcript (n 83) 53 [6]–[27].
The way the parties presented this application means that I have not had the benefit of submissions on eligibility under the FLA or how the plaintiff asserts this alternative applies to her claim. For example, when does the plaintiff say in the alternative that her relationship with the deceased ended?
Had the plaintiff made a clear and binding election to rely solely on a claim as a current partner, the focus of these reasons would have been on the text message and whether or not there was a real prospect of the plaintiff succeeding in such claim. However, despite the informality, eligibility as a former partner is squarely raised between the parties. This prevents summary dismissal based solely on the prospect of success as a current partner and demands consideration be given to the prospects of success as a former partner. I am satisfied that there is a prospect that the plaintiff may be able to establish eligibility as a former partner.
Procedural fairness to the defendant
There is substance in the defendant’s complaint that the present state of the plaintiff’s evidence is woefully inadequate. The plaintiff must inform the Court and the defendant of the true nature of her claim at the outset as a fundamental requirement of all litigation. It is not permissible to simply ambush the defendant at trial.[95] The defendant cannot prepare for trial where the claim has not yet been articulated. Indeed, the defendant is entitled to know in general terms what the plaintiff intends to adduce at trial regarding her claim prior to mediation, otherwise how can he be advised during mediation as to the merits of his defence, what witnesses to call or the likely length and cost of trial? At present, such is the brevity, vagueness and ambiguity of the plaintiff’s material, that it is insufficient to give proper notice of her claim. That is, if the plaintiff were allowed to continue to trial on this material, procedural fairness may be denied to the defendant.
[95] Ibid 52 [10], 52 [12]–[15], 53 [18]–[27].
If the plaintiff were permitted to give viva voce evidence without proper notice of the substance of that evidence, the defendant may need an adjournment mid‑trial to provide instructions, and if any contrary evidence is available, to prepare and produce that evidence.[96] Preparation and conduct of cross‑examination is imperilled without proper notice of at least the general thrust of the plaintiff’s evidence.
[96]For example, in Re Manlio [2015] VSC 733, the opposing party was able to present a ‘veritable tsunami’ of evidence to contradict the purported domestic partner, as nature and extent of the contact with the deceased was set out prior to trial.
If the plaintiff intends to rely at trial on being a former partner, eligibility to take proceedings under the FLA arises, the time period during which the existence of the relationship must be proved shifts, the leading legal authorities change, and the evidence may lengthen. The trial’s duration and content changes. Neither the Court nor the defendant can prepare on the basis of such uncertainty.
For these reasons, I will order that the plaintiff file and serve an amended originating motion that either includes, or expressly disclaims, reliance on being a former partner for eligibility, and which sets out the dates of the applicable relevant period. In addition, I will order that the plaintiff file and serve any further affidavits on which she relies and which set out all facts which are relevant to her claim.
Conclusion
For reasons above, I dismiss the defendant’s summons. Subject to hearing from the parties, in my preliminary view, I will reserve costs of the summons to the trial judge. The parties are to submit draft orders reflecting this judgment to chambers within 14 days, including any proposed consent order regarding costs or, if necessary, a request for a listing for a short hearing on costs.
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