New South Wales
Court of Appeal
CITATION: ROBSON v QUIJARRO [2009] NSWCA 365 HEARING DATE(S): 26 June 2009
JUDGMENT DATE:
11 November 2009JUDGMENT OF: Ipp JA at 1; McColl JA at 2; Basten JA at 3 DECISION: (1) Allow the appeal and set aside the order made in the Equity Division dismissing the appellant’s cross-claim.
(2) Set aside the grant of letters of administration in favour of the respondents.
(3) Remit the matter to the Registrar for a grant of letters of administration in favour of the appellant.
(4) (a) Set aside the order made on 22 August 2008 that the defendant/cross-claimant pay the plaintiffs/cross-defendants’ costs in the Equity Division.
(b) In lieu thereof, order that the plaintiffs/cross-defendants pay the costs of the defendant/cross-claimant in the Equity Division.
(5) Order that the respondents pay the appellant’s costs in this Court.
(6) Grant the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).[ CATCHWORDS: APPEAL – civil – appeal from final orders – nature of appeal – rehearing – combination of objective and oral evidence – significance of matters of credibility – de facto relationship – whether open to Court of Appeal to reassess factual findings - FAMILY LAW – de facto relationship – intestate death – grant of letters of administration – relationship of thirteen years duration – evidence of sexual relationship – evidence of business partnership – evidence of infidelity of deceased throughout duration of relationship – evidence of preliminary steps to reduce extent of financial inter-mingling – evidence of deceased’s intention to marry another woman in future – whether deceased and appellant in de facto relationship for period greater than two years at time of death - Probate and Administration Act 1898 (NSW), s 61B – Property (Relationships) Act 1984 (NSW), s 4 - WORDS AND PHRASES – “de facto spouse” – “live together as a couple” – “mutual commitment to shared life” LEGISLATION CITED: Family Provision Act 1982 (NSW), s 6
Probate and Administration Act 1898 (NSW), ss 32G, 61B
Property (Relationships) Act 1984 (NSW), s 4CATEGORY: Principal judgment CASES CITED: Bourdales v Carroll [2007] NSWSC 1057
Branir v Owston Nominees (No 2) [2001] FCA 1833; 117 FCR 424
Cabal v United Mexican States [2001] FCA 427; 108 FCR 311
Costa v Public Trustee of NSW [2008] NSWCA 223
Roy v Sturgeon (1986) 11 NSWLR 454PARTIES: Merryl Kay Robson – Appellant
Leidy Delpilar Quijarro – First Respondent
Alexander Quijarro – Second RespondentFILE NUMBER(S): CA 40380/08 COUNSEL: M S Willmott SC/E Elbourne – Appellant
B R McClintock SC/M Lawson - RespondentsSOLICITORS: Cropper Parkhill Solicitors – Appellant
Bill Morland Solicitors - RespondentsLOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 115681/07 LOWER COURT JUDICIAL OFFICER: Windeyer J LOWER COURT DATE OF DECISION: 13 August 2008 LOWER COURT MEDIUM NEUTRAL CITATION: Quijarro v Robson [2008] NSWSC 818
CA 40380/08
SC 115681/0711 November 2009IPP JA
McCOLL JA
BASTEN JA
Merryl Kay ROBSON v Leidy Delpilar QUIJARRO
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- AGLC
- Robson v Quijarro [2009] NSWCA 365
- Case
- [2009] NSWCA 365
- Decision Date
CaseChat Overview and Summary
The appeal concerned the determination of a de facto relationship for the purposes of administering the estate of a deceased person. The appellant, Ms. Robson, claimed to have been in a de facto relationship with the deceased for thirteen years prior to his death, entitling her to a grant of letters of administration. The respondents, who were the deceased's next of kin, disputed the existence of such a relationship. The matter came before the Court of Appeal after the primary judge in the Equity Division dismissed the appellant's cross-claim.
The central legal issues before the Court of Appeal were whether the deceased and the appellant were in a de facto relationship for a period greater than two years at the time of the deceased's death, as defined by the relevant legislation, and whether the Court of Appeal was entitled to reassess the factual findings made at first instance, particularly concerning matters of credibility. The court was required to consider the evidence of the parties' sexual relationship, their business partnership, the deceased's infidelity throughout the relationship, preliminary steps taken to reduce financial intermingling, and evidence of the deceased's intention to marry another woman.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in dismissing the appellant's cross-claim. The court applied the principles governing the assessment of de facto relationships, which require consideration of whether the parties "live together as a couple" and demonstrate a "mutual commitment to a shared life." The court held that it was open to the Court of Appeal to reassess factual findings, especially where the primary judge's findings were not based on a clear advantage in assessing credibility. The court found that the evidence, when viewed holistically, established a de facto relationship of sufficient duration.
Consequently, the Court of Appeal set aside the order dismissing the appellant's cross-claim and the grant of letters of administration to the respondents. The matter was remitted to the Registrar for a grant of letters of administration in favour of the appellant. The court also made orders regarding the costs of the proceedings in both the Equity Division and the Court of Appeal, and granted the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).
The central legal issues before the Court of Appeal were whether the deceased and the appellant were in a de facto relationship for a period greater than two years at the time of the deceased's death, as defined by the relevant legislation, and whether the Court of Appeal was entitled to reassess the factual findings made at first instance, particularly concerning matters of credibility. The court was required to consider the evidence of the parties' sexual relationship, their business partnership, the deceased's infidelity throughout the relationship, preliminary steps taken to reduce financial intermingling, and evidence of the deceased's intention to marry another woman.
The Court of Appeal allowed the appeal, finding that the primary judge had erred in dismissing the appellant's cross-claim. The court applied the principles governing the assessment of de facto relationships, which require consideration of whether the parties "live together as a couple" and demonstrate a "mutual commitment to a shared life." The court held that it was open to the Court of Appeal to reassess factual findings, especially where the primary judge's findings were not based on a clear advantage in assessing credibility. The court found that the evidence, when viewed holistically, established a de facto relationship of sufficient duration.
Consequently, the Court of Appeal set aside the order dismissing the appellant's cross-claim and the grant of letters of administration to the respondents. The matter was remitted to the Registrar for a grant of letters of administration in favour of the appellant. The court also made orders regarding the costs of the proceedings in both the Equity Division and the Court of Appeal, and granted the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).
Orders
Orders of the court
(1) Allow the appeal and set aside the order made in the Equity Division dismissing the appellant’s cross-claim.
(2) Set aside the grant of letters of administration in favour of the respondents.
(3) Remit the matter to the Registrar for a grant of letters of administration in favour of the appellant.
(4) (a) Set aside the order made on 22 August 2008 that the defendant/cross-claimant pay the plaintiffs/cross-defendants’ costs in the Equity Division.
(b) In lieu thereof, order that the plaintiffs/cross-defendants pay the costs of the defendant/cross-claimant in the Equity Division.
(5) Order that the respondents pay the appellant’s costs in this Court.
(6) Grant the respondents a certificate under the Suitors’ Fund Act 1951 (NSW).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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