Ryan v Zekas

[2020] WASC 124

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   RYAN -v- ZEKAS [2020] WASC 124

CORAM:   HILL J

HEARD:   24 - 27 SEPTEMBER 2019

DELIVERED          :   28 APRIL 2020

FILE NO/S:   CIV 1144 of 2016

BETWEEN:   BRIAN THOMAS RYAN

Plaintiff

AND

LOUIE ZEKAS

First Defendant

JEREMY LEE JAMES

Second Defendant

NATHAN WILLIAM JAMES

Third Defendant

Catchwords:

Family provision and maintenance - Where deceased made no provision for plaintiff in her will - Whether plaintiff in a de facto relationship with the deceased at date of death - Whether will made adequate provision for the proper maintenance and support of plaintiff - Failure by testator to make sufficient provision for applicant

Legislation:

Family Provision Act 1972 (WA), s 6(1), s 7
Interpretation Act 1984 (WA), s 13A

Result:

Application granted
Deceased's will redistributed to make adequate provision for plaintiff

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr E Ferreira
First Defendant	:	Mr J R Shepherd
Second Defendant	:	Mr J R Shepherd
Third Defendant	:	Mr J R Shepherd

Solicitors:

Plaintiff	:	Douglas Cheveralls Lawyers
First Defendant	:	Blackwall Legal LLP
Second Defendant	:	Blackwall Legal LLP
Third Defendant	:	Blackwall Legal LLP

Case(s) referred to in decision(s):

Butcher v Craig [2010] WASCA 92

Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494

Commissioner of Taxation v Australian Building Systems Pty Ltd (in liq) [2015] HCA 48; (2015) 257 CLR 544

Daniels v Hall [2014] WASC 152

Day v Couch [2000] NSWSC 230

Dean v Collins (No 2) [2015] WASCA 151

Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599

Golosky v Golosky [1993] NSWCA 111

H v P [2011] WASCA 78

Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134

Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160

Kitson v Franks [2001] WASCA 134

Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (Unreported, FCA, 29 June 1995)

Lawrence v Lawrence [2004] WASC 90

Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76

Miller v Taylor [2018] WASC 75

Nominal Defendant v Cordin [2017] NSWCA 6

Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9

Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547

S v B [2004] QCA 449; [2005] 1 Qd R 537

Sadiq v NSW Trustee & Guardian [2015] NSWSC 716

Scherini v Conwell [2018] WASC 172

Schmidt v Malcolm [2016] WASC 209

Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201

Thomas v Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911

Truman and Clifton [2010] FCWA 91

Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

HILL J:

1. The plaintiff, Brian Thomas Ryan (Mick), says that he was in a de facto relationship with Christoniki James (Chris) when she died on 4 June 2015.[1]  At that date, Mick and Chris were both living at 29 Seaward Loop, Sorrento (Sorrento Property) which was purchased by Mick in March 2004 for them to live in. Mick and Chris owned the Sorrento Property as tenants in common. 

   [1] As many of the parties in this matter have the same surname, I will refer to the parties by their first names.  No disrespect is intended to anyone by this.

2. On 13 January 2015, approximately three weeks after receiving a diagnosis that she had terminal cancer and five months before her death, Chris updated her will (Will).[2]  Under the Will:

   (a)her younger son Nathan received a property located at 234 Walcott Street, Menora (Menora Property).  For the purpose of these proceedings, the parties agreed this property is presently valued at $1,025,000; and

   (b)the remainder of her estate, including Chris' 50% share in the Sorrento Property, was left in equal shares to her two sons, Nathan and Jeremy.   For the purpose of these proceedings, the parties agreed that the present value of the Sorrento Property is $1,202,500 and that Chris' share is valued at $601,250.

   [2] Exhibit 1, TB, Tab 33.

3. Chris made no provision for Mick in her will. 

4. Mick has applied for an order that adequate provision be made for his proper maintenance and support from Chris' estate pursuant to the Family Provision Act 1972 (WA). Specifically, he seeks orders for Chris' interest in the Sorrento Property to be transferred to him.

The key issues

1. The key issues for determination in these proceedings are:

   (a)whether Mick was the de facto partner of Chris as at the date of her death; and

   (b)if so, whether an order for provision from Chris' estate should be made in favour of Mick pursuant to s 6(1) of the Family Provision Act.

Relevant legal principles

1. The legal principles which govern this application were not in dispute between the parties.

2. Section 6(1) of the Family Provision Act provides:

   If any person (in this Act called the deceased) dies, then, if the Court is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of his will and that law, is not such as to make adequate provision from his estate for the proper maintenance, support, education or advancement of life of any of the persons mentioned in section 7 as being persons by whom or on whose behalf application may be made under this Act, the Court may, at its discretion, on application made by or on behalf of any such person, order that such provision as the Court thinks fit is made out of the estate of the deceased for that purpose.

3. Pursuant to section 7(1)(a) of the Family Provision Act:

   An application for provision out of the estate of any deceased person may be made under this Act by or on behalf of all or any of the following persons ‑

   (a)a person who was married to, or living as the de facto partner of, the deceased person immediately before the death of the deceased person[.]

De facto relationship

1. The Family Provision Act does not define 'de facto' relationship.  Its definition is in s 13A of the Interpretation Act 1984 (WA) which provides:

   (1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage like relationship.

   (2)The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential ‑

   (a)the length of the relationship between them;

   (b)whether the 2 persons have resided together;

   (c)the nature and extent of common residence;

   (d)whether there is, or has been, a sexual relationship between them;

   (e)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (f)the ownership, use and acquisition of their property (including property they own individually);

   (g)the degree of mutual commitment by them to a shared life;

   (h)whether they care for and support children;

   (i)the reputation, and public aspects, of the relationship between them.

2. As Master Sanderson observed in Scherini v Conwell, there are two important points to note about this definition:[3]

   The first is the section appears to place great emphasis on the parties residing together. In sub-section (1) there is reference to two persons 'who live together'. In sub-section (2)(b) there is a reference to two persons who have 'resided' together. In sub-section (2)(c) there is reference to 'the nature and extent' of the common residence. All of that suggests careful attention needs to be paid to the living arrangements of the parties. Second, there is no reference to anything like natural love and affection. The closest the section comes is sub-section (2)(i).

   [3] Scherini v Conwell [2018] WASC 172 [4].

3. The decision as to whether a de facto relationship existed at the relevant time is a judicial one having regard to the factors in s 13A(2) of the Interpretation Act.[4] 

   [4] H v P [2011] WASCA 78 [53] (Murphy JA).

4. Master Sanderson observed in Schmidt v Malcolm that:[5]

   No standard objective [test] exists against which a purported de facto relationship can be compared to a marriage relationship.  De facto relationships are as diverse as marriages.

   [5] Schmidt v Malcolm [2016] WASC 209 [9].

5. The difficulties of determining whether or not a de facto relationship exists has been noted by numerous judges, including Thackray CJ in Truman v Clifton who stated:[6]

   In the case of legal marriage we have the certainty associated with the certificate of marriage. No matter how appalling the nature of the relationship, those who have complied with the formal requirements of the Marriage Act 1961 (Cth), or its overseas equivalents, are without doubt married. However, the moment a construct such as 'marriage‑like' is introduced, value judgments will come flooding.

   It may well be there are men (and women) who enter into marriage, fully intending to carry on, or at least leave open the possibility of, sexual relationships with others. There are no doubt men (and women) who treat their spouse badly from the very moment they enter into their marriage. There are no doubt marriages in which the wealth or potential wealth of one party is the major inducement to join the union. There are marriages in which husband and wife keep strict accounts, never intermingling what they regard as 'theirs'. Some prospective spouses enter into agreements about how their financial issues will be resolved in the event their marriage ends – a phenomenon now regulated by our legal system.

   How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is 'marriage-like' in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?  (Emphasis in original)

   [6] Truman v Clifton [2010] FCWA 91 [336] ‑ [338].

6. Ultimately, it is necessary for the court to undertake an overall assessment of the facts and all the relevant elements of the relationship.[7]

   [7] H v P [55] (Murphy JA).

7. Unlike a legal marriage, there is no formality as to when a 'marriage-like' relationship starts or finishes. For that reason, it can be difficult to determine whether the de facto relationship is continuing or has come to an end.  In determining whether a de facto relationship has come to an end, Murphy JA in H v P commented:[8]

   In this respect, there is an important distinction to be drawn between a de facto relationship and a legal marriage.  Unlike a legal marriage, which continues despite the absence of any 'marriage-like' characteristics in the relationship, until it is formally dissolved by legal process, a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its 'marriage-like' character continue to exist.  In Hibberson v George, Mahoney JA spoke of the distinction between a legal marriage and a de facto relationship, where he said:

   'There is, of course, more to the relevant relationship than living in the same house.  But there is, I think, a significant distinction between the relationship of marriage and the instant relationship.  The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased.  Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves.  The essence of the present relationship lies, not in law, but in a de facto situation.  I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this.  But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.'

   It follows that when a party to a de facto relationship determines that they no longer wish to live in a 'marriage-like' relationship and conducts their life on that basis, the de facto relationship comes to an end.

   Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives. (citations omitted)

   [8] H v P [56] ‑ [58].

8. However, it is important to keep in mind that deterioration in the quality of a de facto relationship does not mean it has come to an end.  As was held by Dutney J in S v B:[9]

   [A] de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties ceased to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases.

The two‑stage test under s 6(1) of the Family Provision Act

[9] S v B [2004] QCA 449; [2005] 1 Qd R 537 [48].

1. It is well established that on an application under s 6(1) of the Family Provision Act, the Court is required to carry out a two-stage process.[10]

First Stage

[10] Lemon v Mead [2017] WASCA 215; (2017) 53 WAR 76 [50] (Buss P); Dean v Collins (No 2) [2015] WASCA 151 [24] (Chaney J, Martin CJ & Buss JA agreeing); Daniels v Hall [2014] WASC 152 [127] (EM Heenan J); Kitson v Franks [2001] WASCA 134 [6] (Malcolm CJ, Kennedy J agreeing); Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [56]; Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201, 208 ‑ 209.

1. The first stage requires determination of whether the disposition of the deceased's estate was not such as to make adequate provision for the proper maintenance and support of the claimant.  This has previously been described as the 'jurisdictional question' and is to be determined as at the date of death of the testator.[11]  This is a question of objective fact which must be determined by the court.

   [11] Lemon v Mead [54] (Buss P).

2. This question must be determined by reference to all material facts that existed at the date of death of the testator, whether they knew them or not, and all material eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts.[12]

   [12] Lemon v Mead [54] (Buss P) and the authorities cited there.

3. The court is required to take into account what is 'necessary or appropriate prospectively' from the date of death, including events which are certain, exceedingly likely to happen or contingent.[13]

   [13] Lemon v Mead [55] (Buss P) referring to Dixon CJ in Coates v National Executors and Agency Co Ltd [1956] HCA 23; (1956) 95 CLR 494, 508.

4. In assessing whether the provision made (if any) was inadequate for the proper level of maintenance and support of the claimant, the court should have regard, amongst other things, to the claimant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon the deceased's estate.[14]

   [14] Singer v Berghouse (No 2), 208 ‑ 209 (Mason CJ, Deane and McHugh JJ).

5. In assessing the totality of the relationship, it is relevant to consider any sacrifices made or services given by the claimant to or for the benefit of the deceased, any contributions made by the claimant to building up the deceased's estate, and the conduct of the claimant and the deceased towards each other.[15]  While these matters are relevant, they are neither a necessary nor sufficient condition for the making of an order under the Family Provision Act.[16]

   [15] Lemon v Mead [63] (Buss P).

   [16] Lemon v Mead [64] (Buss P).

6. In the absence of special circumstances, the 'broad general rule' is that a testator should ensure that their spouse or de facto spouse is provided with a place to live which is broadly equivalent to what they have become accustomed to.[17]  However, as noted by Mitchell J in Waddingham v Burke,[18] the question as to what is adequate provision for the proper maintenance and support of the plaintiff is a question of fact that must be answered by reference to the evidence and the circumstances of each case; this general rule simply reflects a common approach to the resolution of this factual question.

   [17] Golosky v Golosky [1993] NSWCA 111, 16.

   [18] Waddingham v Burke [2015] WASC 65 [78].

7. In this case, the other persons who have legitimate claims on the deceased's estate are the two adult sons of the deceased.  In that regard, no special principle applies in the case of an adult son although the approach of the court has traditionally been different.  This is because, prima facie, an adult son is able to 'maintain and support' himself.[19]  However, it is not necessary for an adult son to show that his earning powers have been impaired by some disability before it can be established there is a need for maintenance and support.[20] 

   [19] Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 [26] (Gleeson CJ).

   [20] Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134, 147 - 148 (Gibbs J).

8. In considering an application under the Family Provision Act, there are no rigid rules – each case will depend on all of the factual circumstances.[21]

Second Stage

[21] Hughes v National Trustees Executors and Agency Co of Australasia Ltd, 148 (Gibbs J).

1. If it is determined that the disposition of the deceased's estate did not make adequate provision for the proper maintenance and support of the claimant, the court, in exercising its discretion to make such provision as it thinks fit, must take into account the relevant facts as they exist at the time of making the order.[22]  In determining that question, similar considerations arise to those in the first stage.[23]  That is, it is necessary to consider the financial position of the claimant, the need and moral claim of the claimant to provision from the estate, the need and moral claims of other persons who have a legitimate claim on the testator's bounty, and the size of the estate at the date of the testator's death.[24]

   [22] Lemon v Mead [56] (Buss P).

   [23] Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ).

   [24] Butcher v Craig [2010] WASCA 92 [12]; Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 [9] (McLure JA); see also Singer v Berghouse (No 2), 210 (Mason CJ, Deane & McHugh JJ); Kitson v Franks [35] (Parker J), [10] (Malcolm CJ agreeing), [20] (Kennedy J agreeing).

2. The decision at the second stage involves an exercise of discretion in the accepted sense.[25]

   [25] Lemon v Mead [52] ‑ [53] (Buss P).

3. If an award is to be made, it must be no more than that which will provide adequate provision for the proper maintenance and support of the claimant.[26]  In exercising the jurisdiction conferred by the Family Provision Act, the court is interfering with the testator's disposition.  Freedom of testamentary disposition is a relevant and important consideration in the exercise of the discretion.  It should only be interfered with to the minimum extent which is necessary to make adequate provision for a claimant's proper maintenance and support.[27]

Meaning of 'adequate' and 'proper'

[26] Lemon v Mead [267] (Mitchell & Beech JJA).

[27] Lemon v Mead [269] (Mitchell & Beech JJA).

1. The discretionary power which is conferred by the Family Provision Act at the second stage empowers the court to award an 'adequate' provision for the 'proper' maintenance, support, education or advancement in life, but no more.[28] 

   [28] Lemon v Mead [58] (Buss P).

2. 'Proper' and 'adequate' mean different things.  The term 'proper' prescribes the standard of maintenance, support, education or advancement in life, whereas the term 'adequate' is concerned with the quantum of the award.[29] 

   [29] Lemon v Mead [65] (Buss P).

3. In considering whether the provision made for a claimant is proper, the assessment must take into account all of the circumstances, including contemporary accepted community standards.[30]

   [30] Daniels v Hall [132] (EM Heenan J).

4. The determination of the quantum of an award which would be adequate for the proper maintenance, support, education or advancement of a claimant is a relative question which requires consideration to be given to the nature, extent and character of the estate as well as the other claims on it.[31]

   [31] Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9, 19 (Dixon CJ).

5. In determining whether the provision made for the claimant is 'adequate', it is necessary to consider not only the requirements of the claimant but also the totality of the relationship between the claimant and the deceased.  As Buss P stated in Lemon v Mead, this assessment takes into account:[32]

   (a)any sacrifices made or services given by the claimant to or for the benefit of the deceased;

   (b)any contributions by the claimant to building up the deceased's estate; and

   (c)the conduct of the claimant towards the deceased and of the deceased towards the claimant.

   [32] Lemon v Mead [63] (Buss P).

6. While these matters are a relevant consideration, they are neither a necessary nor sufficient condition for the making of an order under the Family Provision Act.[33]

   [33] Lemon v Mead [64] (Buss P).

7. Adequate provision is not limited to provision being made for the supply of life's necessities; it enables provision to be made over and above a mere sufficiency of means upon which to live.[34]  It takes account how the claimant lived and might reasonably expect to have lived in the future[35] and whether the claimant can satisfy their requirements from their own resources.[36]

   [34] Vigolo v Bostin [115] (Callinan & Heydon JJ).

   [35] Vigolo v Bostin [114] (Callinan & Heydon JJ).

   [36] Lemon v Mead [70] (Buss P); Singer v Berghouse (No 2), 227 (Gaudron J).

8. In Vigolo v Bostin, Callinan and Heydon JJ considered the meaning of the words 'maintenance', 'support' and 'advancement' in s 6(1) of the Family Provision Act and held that:[37]

   'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need.  The use of the two terms serves to amplify the powers conferred upon the court.  And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. 

   [37] Vigolo v Bostin [115].

Onus and general observations on credibility

1. The plaintiff accepts that he bears the onus of proving both that he was in a de facto relationship with Chris at the time of her death and that Chris failed to make adequate provision for him.[38]  These matters need to be proved to the reasonable satisfaction of the Court.[39]

   [38] Plaintiff’s submissions [33].

   [39] Family Provision Act, s 4(2).

2. In this case, the evidence from the witnesses concerned events that occurred over a period of more than 20 years.  Recent authorities have discussed the approach that should be taken by the court in these circumstances.[40]  In considering the evidence in this case, I have applied the following principles:

   [40] Blacket v Barnett [2017] NSWSC 1032 [243] - [257] (Hallen J). See also Belgravia Nominees Pty Ltd v Lowe Pty Ltd [No 6] [2019] WASC 5 [26] (Tottle J).

   (a)Evidence of conversations with a person who has subsequently died should be subjected to careful scrutiny. The deceased is not available to admit or deny the specific allegations made by the witness giving evidence of any conversation or to give their evidence of the conversation.

   (b)The need for careful scrutiny may be greater where the person giving evidence of the conversations has a self‑interest in the outcome of the proceedings.

   (c)The court will treat uncorroborated evidence of communications by a person who has subsequently died with considerable caution.  While there is no absolute legal requirement for it, the court should look for some independent corroboration.[41]

   (d)There is a significant risk that conversations have been reconstructed by witnesses.  There are dangers in relying on evidence of what may have been a casual observation made to a person who had no reason to remember the exact words used at the time of the conversation.  For this reason, a substantial evidentiary burden is on a party whose case relies upon such evidence.[42]

   (e)The court must recognise that human memory of what was said in a conversation is fallible for a variety of reasons.  Ordinarily, this will increase over time, particularly where disputes or litigation intervene.  This is because the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said.  All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed.[43]

   (f)The credibility of a witness and their veracity may also be tested by reference to the objective facts proved independently, in particular by reference to the documents in the case.  It is preferable to rely on contemporaneous documents in cases which involve events which occurred long before the litigation.  Often the only safe course in such cases is to place primary emphasis on the objective factual surrounding material, the inherent commercial probabilities and the contemporaneous documents.  Documents will often provide more valuable information than the attempted recollection of the facts by witnesses with an interest in the outcome of the litigation.  This is particularly the case when the documents are accepted as genuine and were prepared by a person who had no reason to misstate the facts in these documents.[44]

   (g)Contemporaneous statements and documents are likely to be a more accurate reflection of events than later statements.  This is because false memories can intrude, especially when the person recalling events has tried to assemble recollections logically.  In doing so, the person can attempt to have some rational explanation in the person's mind as to what has happened.  It is important to keep in mind that memories are both fluid and malleable and are constantly rewritten whenever they are retrieved.[45] 

   (h)The court must be alive to the reality that words that are spoken are capable of bearing different and potentially opposed meanings depending on the nuance and emphasis that is given to particular words.  A person's appreciation of the significance of these matters must necessarily be considerably diminished if there is a significant delay between the date when the conversation took place and the hearing at which the evidence of that conversation is given.[46]

   (i)The court must recognise that:[47]

   Memory is a constructive and reconstructive process.  What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering.  Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval.

   [41] Day v Couch [2000] NSWSC 230 [9].

   [42] Webb v Ryan [2012] VSC 377 [22] (Whelan J).

   [43] Watson v Foxman (1995) 49 NSWLR 315, 318 ‑ 319 (McLelland CJ in Eq).

   [44] Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 [7]; Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 [15]; Hughes v St Barbara Mines Ltd[No 4] [2010] WASC 160 [157].

   [45] Nominal Defendant v Cordin [2017] NSWCA 6 [171] (Davies J, Emmett AJA agreeing).

   [46] Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (Unreported, FCA, 29 June 1995) 122 ‑ 123 (Tamberlin J).

   [47] McClellan P, 'Who Is Telling the Truth? Psychology, Common Sense and the Law' (2006) 80 Australian Law Journal 655, 665, quoting Australian Psychological Society, Guidelines Relating to Recovered Memories (2000).

3. Mick's primary evidence about the nature of his relationship with Chris was his own evidence.  For the reasons summarised above, I have considered his evidence carefully and with suspicion given that Chris is deceased and cannot give her version of these matters.[48]

   [48] Thomas v Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911, 916 (Plowman J) cited with approval in Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 [119] ‑ [129] and Miller v Taylor [2018] WASC 75 [16].

4. Much of the defendants' evidence came from the defendants or their family members.  In this regard, most of the witnesses have a self-interest in the proceedings in advancing their own claim or preserving their entitlements or the entitlements of those they are associated with under the Will. 

5. Finally, the court must also keep in mind the bitterness between parties that disputes over deceased estates generate.[49]  This was clearly the case in this matter.

   [49] See Miller v Taylor [20].

Approach to the evidence

1. At the trial, a number of witnesses were called to advance the respective contentions of each of the parties.  Mick gave evidence at the trial and called his sister, Janice Lambrecht, to give evidence as to his relationship with Chris.  For the defendants, evidence was given by Jeremy and Nathan, Chris' adult sons; Louie, Chris' brother and the executor of Chris' estate; Elaine MacLeod, Chris' former business partner; and Leanne Wight, Chris' niece.  The parties also tendered, by consent, a trial bundle comprising three lever arch folders and a supplementary folder.

2. In assessing the evidence, I have considered the contemporaneous documentary evidence, as well as the oral evidence.  There were only very limited contemporaneous documents which provided any assistance in assessing the reliability of the evidence given by the witnesses and to assist in making factual findings.

3. Much of the evidence was not significantly in dispute or was of only marginal relevance to the threshold issue in the proceedings, namely whether Mick and Chris were in a de facto relationship as at the date of her death.

4. The witnesses generally presented as doing their best to give an accurate account of their observations.  However, in my view, the observations of most of the witnesses were clouded by the strong views they had about Mick's claim, their retrospective views on Chris and Micks' relationship, and what they consider a relationship should entail.  As noted above, memory is often a poor transcript of what has occurred in the past.

5. Generally, I have assessed the contemporaneous documentary evidence as being the most reliable evidence.  However, in respect of Chris' death certificate, as set out in [145] ‑ [157], this document cannot be taken at face value and it is necessary to consider the relationship between this document and the oral evidence given by the relevant witnesses. 

6. The only truly independent witness was Elaine, Chris' former business partner who described herself as Chris' soul sister.[50]  Elaine gave her evidence in a measured and thoughtful way and was willing to make concessions.  Except where expressly dealt with below, I accept Elaine's evidence. 

   [50] ts 161.

7. Counsel for the defendants contended that Leanne was also an independent witness.  While I accept that Leanne does not have a financial interest in the outcome of the proceedings, she is Jeremy and Nathan's cousin and was Chris' niece.  For this reason, I do not consider that she can be viewed as truly independent.  Leanne was a somewhat unusual witness who gave evidence in a highly emotional and unstructured way.  In addition, the generality of her answers made it difficult to place significant weight on her evidence.  That said, most of the more specific parts of her evidence was supported by the evidence of other witnesses or contemporaneous documents. 

8. In relation to the remaining witnesses, I have considered their evidence carefully and in accordance with the observations summarised above.  I have set out below my specific findings on the evidence they gave.

The parties

1. Mick was born on 18 April 1943 and is presently 77 years old.  Mick currently lives at the Sorrento Property.[51]  He was previously married and separated from his wife in 1990.  He has four children from his first marriage.[52] 

   [51] ts 28.

   [52] ts 28.

2. Mick was a wholesale fashion agent until his retirement in 2013.  Chris was also a wholesale fashion agent although they worked in different segments of the market.[53]

   [53] ts 55.

3. The other interested parties in Chris' estate are her two sons with her ex-husband Ray Britton:  Jeremy Lee James (the second defendant) and Nathan William James (the third defendant).  At the time of Chris' death, they were 44 and 42 years of age respectively.  They currently live at the Menora Property which Nathan inherited from Chris.[54]

   [54] ts 211, 280.

Was Mick the de facto partner of Chris at the time of her death?

Start of relationship between Mick and Chris

1. Mick first met Chris when she was 17 although they did not commence a relationship until late 1990.[55]  At that time, Mick was 47 and Chris was 43.  Both had been married and were separated or divorced at the time their relationship commenced.

   [55] ts 29.

2. In 1991, Mick moved in with Chris to the Menora Property, which Chris owned.[56]  Chris' two sons, Nathan and Jeremy, who were then aged 18 and 20 respectively, lived with her there.[57]

   [56] ts 29.

   [57] ts 29.

3. Mick's evidence was that while they lived at the Menora Property, they shared a bedroom and had a sexual relationship.[58]  Leanne's evidence was that after Mick moved in to the Menora Property, he slept on the couch.[59]  Nathan's evidence was that while Chris and Mick lived at the Menora Property, Mick made Chris happy.[60]

   [58] ts 30.

   [59] ts 288.

   [60] ts 284.

4. For the following reasons, I prefer Mick's evidence to Leanne's on this point. First, this evidence was not put to any of the witnesses who lived at the Menora Property.  These witnesses would be in a better position to know whether Mick slept on the couch.  Second, Leanne's evidence was based on conversations she had with Chris and not her own observations.  She was not specific about the time or content of these conversations.  Third, I do not accept that Mick would have slept on the couch for 13 years when he had his own property in Mandurah until 2002 or 2003.

5. Chris paid all of the mortgage payments and outgoings associated with the Menora Property and Mick paid for groceries.  Mick's evidence was that when they went out for dinner with Nathan and Jeremy, he would pay for all of them.[61]

   [61] ts 32.

6. Mick moved out of the Menora Property on two occasions.  First, he moved out for about six months in 2000 or 2001, so that he could attempt to assist his son.  Second, he moved out for between three to six months in late 2003 and early 2004 and rented a property in West Perth.  Mick's evidence was that he moved out of the Menora Property of his own accord because he had promised to buy a house for Chris and him to live in and had not done so.[62]  The evidence of both Leanne[63] and Jeremy[64] was that Chris had 'kicked him out'. 

   [62] ts 32, 109.

   [63] ts 290.

   [64] ts 218.

7. While it is not material to the issues that I have to decide, I prefer the evidence of Leanne and Jeremy and find that Chris asked Mick to leave the Menora Property at the end of 2003.  While Mick sought to characterise the move as his decision, it is clear that he moved out of the Menora Property because he had not bought a property for him and Chris to live in.  I consider that it is more likely that Chris asked him to move out.

Purchase of the Sorrento Property

1. Despite being asked to move out in late 2003, it is apparent that Mick and Chris reconciled in early 2004.  Before reconciling with Mick, Chris required a written commitment from him. Accordingly, on 6 February 2004, Mick wrote and signed a note to Chris in the following terms:[65]

   I, Brian Thomas Ryan, do promise to provide a dwelling of Chris' liking by 30 April 2004. A further commitment of marriage, should she request the same. I love her and will spend the rest of my life with her. So, help me, God.

   [65] Exhibit 1, TB, Tab 2.

2. Chris loved the ocean and wanted to move to a property close to the water.[66]  After looking at various properties on or near the beach, in March 2004, the Sorrento Property was identified and purchased[67] and they moved in during April 2004.  Jeremy and Nathan continued to live at the Menora Property.

   [66] ts 32 - 33.

   [67] ts 32.

3. Elaine recalled speaking to Chris prior to the purchase of the Sorrento Property.  Chris told her that she and Mick were going to buy a house together but that Mick was going to pay for it, essentially to repay Chris for living in the Menora Property for 13 years.[68]  I accept Elaine's evidence that this conversation occurred and that this was the basis upon which Chris and Mick purchased the Sorrento Property.

   [68] ts 165.

4. Mick and Chris purchased the Sorrento Property as 'tenants in common in equal shares'.[69]  Mick arranged for the Sorrento Property to be registered in their names as tenants in common.[70]

   [69] Exhibit 1, TB, Tab 8.

   [70] Exhibit 1, TB, Tab 194, p 397 [7].

5. Chris paid the initial deposit of $10,000, which Mick subsequently repaid to her.  Mick paid the subsequent deposit of $204,710[71] as well as the stamp duty on the purchase.[72]  The balance of the purchase price was financed by a loan from Liberty Funding in the names of both Mick and Chris of $792,000.[73]  Mick paid the loan repayments[74] and in July 2005, paid out the balance of the loan.[75] 

   [71] Exhibit 1, TB, Tab 7.

   [72] Exhibit 1, TB, Tab 5.

   [73] Exhibit 1, TB, Tab 4.

   [74] ts 35; Exhibit 1, TB, Tab 70, p 145.

   [75] ts 35; Exhibit 1, TB, Tabs 19 and 20.

6. Mick's evidence was that he believed that if he died, Chris would become the sole owner of the Sorrento Property and that he would become the sole owner if Chris died first.[76]  He says that he did not understand that tenants in common meant that Chris' share of the Sorrento Property would become part of her estate.

   [76] ts 37 - 38.

7. It was contended that Mick's mistaken understanding was evident from his updated will, which was prepared in April 2005.[77]

   [77] Exhibit 1, TB, Tab 15.

8. In his will, Mick refers to Chris as his 'de facto wife' and makes two provisions that impact her: first, to direct that the balance of any mortgage on the Sorrento Property 'registered in the joint names of myself and my de facto wife' be paid without any claim for contribution being made from Chris and to require Chris to be indemnified for any payments she made after his death; and second, to release Chris from a debt of $149,000.  Apart from these provisions, under the will, the 'rest and residue' of Mick's estate was left to two of his children 'as tenants in common in equal shares'.

9. Counsel for the defendants submitted, quite correctly, that Mick's will did not make any provision for Chris to have the Sorrento Property in the event that Mick died before she did.  This is because Chris and Mick owned the Sorrento Property as tenants in common and not joint tenants.

1. Mick's evidence was that he did not understand what tenants in common meant and that this term was never explained to him.

2. I accept Mick's evidence that he mistakenly believed that if he died before Chris, his interest in the house would automatically pass to her.  In my view, this is consistent with the terms of Mick's will which requires the discharge of the mortgage over the Sorrento Property and that 'the rest and residue' of his estate be left to his children.  If Mick had intended that his estate including his interest in the Sorrento Property be bequeathed to his children, these words would not be required.

3. However, I do not accept that it was a mistake that he and Chris purchased the Sorrento Property as tenants in common rather than joint tenants.  For the following reasons, I find that the Sorrento Property was deliberately purchased by Mick and Chris as tenants in common. 

4. First, Mick's evidence was that there was never a discussion between him and Chris about what would occur in the event she died before him.[78]  In contrast, Elaine's evidence was that in purchasing the Sorrento Property, Chris wanted certainty as to her half of the property.[79]  Elaine's evidence was that Chris was very careful about how she wanted her interests structured and what would occur after her death.  She said that Chris discussed with her what would happen to their interests in their business if one of them was to die.  Her evidence was that:[80]

   [Chris] said to me, 'How would you feel if – if I was to die and Jeremy' – she said at the time that she would leave everything that she owed to both the boys.  She always made that very clear all the way through her – her lifetime with me.  So [Chris] said, 'If I leave my assets to the boys, then they would automatically get' her share of the business.  [Chris] said, 'And it's like way' – it's the same with John.  She said, 'You would have to pay Jeremy out.  I would have to pay John out if we didn't want them actively in the business.'  And we had that discussion.  We actually mutually decided that it could, indeed, be an issue for the remaining person, and we mutually left each other our businesses.

   [78] ts 41.

   [79] ts 178.

   [80] ts 165 ‑ 166.

5. While Elaine made this provision in her will and understood that Chris had done the same,[81] I note that this mutual decision is not reflected in the previous will of Chris which left her estate to Jeremy and Nathan in equal shares.[82]  Notwithstanding this, I accept Elaine's evidence that prior to purchasing the Sorrento Property, Chris wanted certainty as to her share in the property. 

   [81] ts 179.

   [82] Exhibit 1, TB, Tab 224.

6. Second, the Sorrento Property was purchased shortly after Mick and Chris had reconciled after a period of estrangement.  I consider it is more likely that in purchasing a property at this time, Chris would want to ensure that her financial interests were protected in case the relationship did not work out.

Relationship between Mick and Chris after their move to Sorrento and prior to her diagnosis with cancer

1. Chris and Mick never married nor had any children together, although Chris wore an engagement ring which had been purchased by Mick.[83]  Janice's evidence was that Chris showed her the engagement ring and told her that she and Mick had gone together to choose it.[84]  She could not recall when this occurred.

   [83] ts 29.

   [84] ts 134.

2. Chris and Mick shared a bedroom at the Sorrento Property until 2010, when Mick had a hip operation.  After this, Mick moved to a bedroom on the ground floor of the house so he didn't have to go up and down the stairs.[85]  From that time, Chris and Mick had separate bedrooms.  They continued to have a sexual relationship until the beginning of 2014.[86]  Mick gave no reason as to why their sexual relationship ceased.  His evidence was 'things just happen'.[87]  Neither he nor Chris had any other sexual partners from 1991 until Chris' death on 4 June 2015.[88]

   [85] ts 31.

   [86] ts 31.

   [87] ts 31.

   [88] ts 44.

3. At the Sorrento Property, Mick paid for most of the outgoings associated with the Sorrento Property[89] apart from the costs of lawn‑mowing (which was shared) and the phone line, which Chris paid for.[90]  Otherwise, they continued to manage their finances independently and did not have joint bank accounts.[91]  They each paid their own expenses for motor vehicles, health insurance and mobile phones.

   [89] ts 186.

   [90] ts 42.

   [91] ts 183, 186.

4. After Mick and Chris moved to the Sorrento Property, they continued to see Nathan and, to a lesser extent, Jeremy on a regular basis.  Nathan and Jeremy came to dinner at the Sorrento Property most Sundays.[92] 

   [92] ts 46, 284.

5. Mick gave evidence that he and Chris would go for a coffee most mornings and meet friends there.[93]  After coffee, Chris would walk along the beach to collect shells and Mick would walk home with their malamute dog.[94]

   [93] ts 47.

   [94] ts 118 - 119.

6. From about 2004 until the end of 2014, Janice and her partner used to meet Mick and Chris, together with their dog, on Saturday mornings for coffee or breakfast at a café at the beach.[95] This was a regular arrangement, unless one of them had a conflicting appointment,[96] and only stopped when Chris became sick.[97]

   [95] ts 117.

   [96] ts 133.

   [97] ts 118.

7. Mick and Chris also socialised regularly with Louie and his wife.  Louie's evidence was that they would socialise every two months or so.[98]

   [98] ts 185.

8. In 2005, Chris and Elaine sold their business to a staff member.  They spent the following year handing over the business.  After the sale of the business, Chris retired although Elaine opened another business and continued to work.[99]  They remained in contact after the sale of the business until Chris' death.[100]

   [99] ts 166 - 167.

   [100] ts 166.

9. Mick retired at the end of 2013.[101]

   [101] ts 56.

10. Over the course of their relationship, Chris and Mick went on holidays together including attending the Australian Rules grand finals in Melbourne in 1991, 1992 and 1994 as well as overseas trips to the United States, Greece, the United Kingdom, Hong Kong and Singapore.[102]  They attended weddings together, including weddings in Sydney in 1992 and 1996.[103] 

    [102] ts 47 - 48.

    [103] ts 48.

11. They also celebrated major events together with either Chris' or Mick's family.  Mick's evidence was that they spent Christmas Day and Greek Easter with Chris' family and Australia Day with his family.[104]

    [104] ts 55.

12. The plaintiff adduced a number of photographs of their relationship.[105]  The latest of these photographs, apart from a photo of Chris by herself, is from 2010, approximately five years before Chris' death.

    [105] Exhibit 1, TB, Tab 222.

13. In his tax returns for the 2008 to 2015 financial years, filed in April 2016, Mick did not refer to Chris as his de facto partner.[106]  His evidence was that they each did their own tax returns and that neither listed the other as their de facto partner on their returns.  I note that these tax returns were filed after Chris' death and accordingly, are not strictly contemporaneous documents.  In any event, it is clear that Mick and Chris kept their financial affairs separate for the entirety of the relationship.  For this reason, I consider the tax returns are consistent with this position and are not determinative of whether or not Mick and Chris were in a de facto relationship as at the date of Chris' death.  They are a matter that I take into account together with all of the other evidence in considering this issue.

    [106] ts 107.

14. In support of his claim that he was in a de facto relationship with Chris, Mick referred to a number of occasions where he supported Chris (which I deal with in more detail at [268] ‑ [275] below) and Jeremy. Specifically, he gave evidence that he assisted Jeremy to obtain a loan for the purchase of a property in Quinns Rocks, although this was only by way of an introduction to a friend at the StateWest Building Society.[107]  He also advanced Jeremy $US20,000 in May 2011 to purchase convertible promissory notes in Save the World Inc.[108]  Counsel for the plaintiff submitted that Mick would not have provided this assistance to Jeremy unless he was in a de facto relationship with Jeremy's mother.

    [107] ts 44.

    [108] Exhibit 1, TB, Tabs 30 and 31; ts 45.

15. A number of the witnesses gave evidence as to their perception of the relationship between Mick and Chris.

16. Janice considered that Mick and Chris' relationship was '[a]s a married couple'[109] and that she did not perceive any change in Chris and Micks' relationship between about 2004 and Chris' death in 2015.[110]  The basis for her view was that they were invited everywhere as a couple and they entertained people at their home, including having Mick's family over to their house when Mick's sons were visiting from the eastern states.[111]  She recalled that Chris told her that Mick was good to her.[112]  Janice's evidence was that she never spoke to Mick about his feelings for Chris.  It is also clear that Janice did not see Chris in the four to five months prior to her death.

    [109] ts 133.

    [110] ts 135.

    [111] ts 133.

    [112] ts 134.

17. Elaine described the relationship between Mick and Chris as:[113]

    a very unusual relationship in the sense that it was – it was never a passionate, kind of overly intimate relationship.  It was a relationship initially that started out sort of in a fairly comfortable kind of way, but over the years, it became quite fraught with stress, anguish.  I would say, actually, it got quite toxic at times.  It was quite a difficult relationship.

    [113] ts 162.

18. Elaine's evidence was that over the years Chris told her that she felt quite lonely in her relationship with Mick.[114]  Elaine agreed, under cross‑examination, that after Chris' retirement in 2006, it was possible that Chris felt lonely because both Mick and Elaine were still working and she had retired.[115]

    [114] ts 162.

    [115] ts 177.

19. Elaine's evidence was that the relationship between Chris and Mick went downhill after 2007 and that, after this point, they lived quite separate lives.[116]

    [116] ts 167 - 168.

20. Louie's view was that the relationship between Mick and Chris was 'quite unusual' and that it lacked 'warmth, affection'.[117]

    [117] ts 183.

21. It is apparent from the evidence given by each of the witnesses that Mick is not a demonstrative person and that he was not openly physically affectionate towards Chris in front of other people.  This evidence is consistent with my observations of Mick in the witness box and the evidence that he gave.  However, in my view, this, of itself, is not evidence that the relationship between Chris and Mick cannot be characterised as a de facto relationship.  In that regard, I consider there is great diversity in the degree to which a person will show affection to their partner, particularly in public.

22. In evidence‑in‑chief, Jeremy said that in the last few years prior to her diagnosis, Chris told him that she hated living in the Sorrento Property and that he had asked her to move back in with him and Nathan.[118]  Chris' response was that she didn't want to move back with her sons and that she wanted to continue to live near the beach.[119]  This conversation was not in Jeremy's witness statement which stood as his outline of evidence.[120]  When he was asked, under cross‑examination, why this conversation was not included in his witness statement, his explanation was that at the time, it did not come to mind or appear to be relevant.[121]

    [118] ts 219.

    [119] ts 219.

    [120] Exhibit 6.

    [121] ts 273.

23. I do not accept Jeremy's evidence that this conversation occurred.  The absence of any reference to this conversation in Jeremy's outline,[122] which was prepared in October 2017, almost two years before he gave evidence in these proceedings, is difficult to reconcile with the remaining contents of the outline.  In the outline, Jeremy referred to the living arrangements between Chris and Mick and his observations of their relationship.  I consider that had this conversation occurred, Jeremy would have included it in his outline as it is relevant to the threshold issue in these proceedings - namely whether Chris and Mick were in a de facto relationship at the date of Chris' death.

    [122] The outline was prepared as a witness statement in CIV 1021 of 2017; pursuant to orders made 27 June 2019, the statement was ordered to stand as Jeremy's witness outline. 

24. In addition, it is clear from the evidence given by both Elaine and Leanne that they were both very close to Chris and discussed personal aspects of their relationships with each other.  In my view, had this conversation occurred, Chris would have had a similar conversation with Elaine and Leanne.  Neither Elaine nor Leanne gave evidence of any such conversation.

Mick and Chris' relationship following her diagnosis

1. In December 2014, Chris was diagnosed with lung cancer.  She had been unwell for 12 to 18 months prior to this but had not seen a doctor.[123]  Over that period, Chris spent a lot of time laying on the couch in the Sorrento Property and she and Mick did not go out very much.  Mick would generally organise take away dinner for them and they would have dinner and then watch television together.[124]  

   [123] ts 56.

   [124] ts 57.

2. From May 2014, Chris wrote out cheques to Mick on a semi‑regular basis.[125]  Mick's evidence was that this was because Chris was too unwell to personally attend a bank.  As a consequence, she would write a cheque payable to Mick in a particular amount, he would give Chris cash in the same amount as the cheque and he would then bank the cheques.  This evidence is consistent with the evidence of all of the witnesses that Mick and Chris kept their financial interests entirely separate.

   [125] Exhibit 1, TB, Tab 182 - 185; ts 69 - 70.

3. In December 2014, Leanne took Chris to Garden City for Christmas shopping and observed that Chris was not well.  Shortly after this, she took Chris to a medical appointment at the Seacrest Medical Centre. [126]  After Chris saw her doctor, she came out and told Leanne that she had masses on her lungs.[127] 

   [126] ts 57, 294 - 295.

   [127] ts 295.

4. Leanne drove Chris home and was there when Chris told Mick of her diagnosis.  Leanne's evidence was that Mick didn't say or do anything.[128]  This is consistent with Mick's evidence.  On being asked how he felt on being told this, his evidence was:[129]

   What – well, you know, you couldn't say anything, you know.  But really, I told you so, but you couldn't tell her.

   [128] ts 295.

   [129] ts 57.

5. Both Leanne and Elaine gave evidence that Chris was upset by Mick's reaction.[130]  Elaine recalled that Chris told her on a number of occasions that she was extremely upset about Mick's reaction when she told him she had lung cancer.  Specifically, her evidence was that:[131]

   She was extremely upset when she told him, because he – she said to me – and she mentioned this a number of times that she said he couldn't even hold me.  She said he couldn't – she said he just couldn't even give me a hug.  She just said he just stood there.  She was very – she got very upset, but in an angry kind of way that he wasn't demonstrative, even when she said, like, 'I've got two months to live.'  Like, 'That's what they're telling me.'  So it was quite – it – yes.  She was devastated and I was devastated for her as well.

   [130] ts 297.

   [131] ts 169.

6. Mick informed Jeremy by text message that Chris had been to the doctor. Jeremy then called his mother who told him that she had lung cancer.[132]

   [132] ts 219.

7. After being told of Chris' diagnosis, Jeremy moved into the Sorrento Property to help look after her.[133]

   [133] ts 220.

8. On Christmas Day 2014, Chris, Mick and Jeremy were due to have Christmas lunch with Chris' sister, Polly, at her house.  As they were getting ready to go to lunch, Chris had a seizure or stroke.  Jeremy left with Chris and drove to Polly's house where Chris had another seizure.  An ambulance took Chris and Jeremy to hospital while the rest of the family, including Mick, stayed at Polly's house for Christmas lunch.  At 5.00 pm, Jeremy rang to inform them that Chris had a brain tumour[134] and had been given between three weeks and five months to live.[135]

   [134] ts 59.

   [135] ts 60.

9. After her diagnosis, Chris was told there was no treatment that she could be offered and was informed she should put her affairs in order.  Chris did not want palliative care but wanted to be at home and 'die by the ocean'.[136]

   [136] ts 170.

10. Chris stayed in hospital for a few days.  On the first day Louie visited Chris in hospital, Chris asked Louie to help her change her will.  His evidence was that:[137]

    [Chris] wanted to bequeath the house at Mount Lawley to Nathan and to distribute the balance [of] the assets to Jeremy and Nathan.  The previous will essentially was a distribution of the assets equally between Nathan and Jeremy.  So the major change was Nathan.  Now, the reason she gave to me for doing so was that, essentially, she wanted to put a roof over Nathan's head and I empathised and – with that particular decision because prior to her diagnosis, she often expressed concern to me about Nathan's wellbeing, particularly his lack of energy, his reluctance to actively pursue work, his reluctance to pursue payment for work that had been done.  The fact that he was – he would stay inside the house for extended periods of time and that he wasn't socialising and I think that she basically [was] concerned about his future to that end.

    [137] ts 184.

11. An updated will was prepared which was signed by Chris on 13 January 2015.[138]

    [138] Exhibit 1, TB, Tab 33.

12. After Chris' diagnosis, Leanne resigned from her job so she could spend time with Chris.  Each weekday until Chris' death, after dropping her daughter at school, Leanne drove up from Mandurah to the Sorrento Property.[139]  Elaine tried to see Chris 'every other day', although this was not always possible as she was running a retail business, her husband was not well, another friend was having treatment for breast cancer and she was assisting looking after her elderly father.[140]

    [139] ts 297.

    [140] ts 172.

13. After the initial diagnosis, Janice visited Chris at the Sorrento Property on two occasions.  On the first occasion, in addition to Mick and Chris, Jeremy, Elaine and Leanne were there when she visited.[141]  On the next occasion, in February 2015, she called in about 5.00 pm.  On this occasion, only Mick and Chris were at the Sorrento Property.[142]  After this, she did not see Chris again as Chris told her that she preferred not to have visitors.[143] 

    [141] ts 119.

    [142] ts 120.

    [143] ts 120.

14. Between December 2014 and March 2015, Louie saw Chris every week.[144]  He retired in March 2015 and, after that, visited Chris every Friday for lunch.  He would arrive between 10.00 am and 11.00 am and leave about 3.00 pm.[145]  When he arrived, Leanne was generally there, Elaine was there on many occasions as well as Jeremy.[146]  On two or three of these occasions, Mick was at the Sorrento Property when he arrived.  On the other occasions, Mick would arrive at the Sorrento Property at about 3.00 pm and they would exchange pleasantries.[147]

    [144] ts 186.

    [145] ts 186 - 187.

    [146] ts 187.

    [147] ts 187.

15. Nathan's evidence was that after Chris' diagnosis, she said that she didn't want to be alone with Mick and wanted someone else to be there with her to look after her.[148] 

    [148] ts 285.

16. At or around this time, Leanne recalled a conversation she had with Chris, Mick and Jeremy about who would care for Chris.  During this conversation, Chris said 'Between Jeremy and Mick, you can take turns in staying with me at night time, because I don't want to die by myself'.[149]  The arrangement between them was that Leanne would be with Chris during week days and Jeremy and Mick 'had to sort it out at night time'.[150] 

    [149] ts 299.

    [150] ts 299.

17. I do not accept Nathan's evidence that Chris said she did not want to be alone with Mick and prefer Leanne's evidence.  Leanne's evidence is consistent with what occurred - namely that someone was with Chris all of the time and that she (and/or Elaine) looked after Chris during the day and Jeremy and Mick looked after her at night.

1. Within five to ten minutes of the arrival of Leanne or Elaine, Mick would leave the house and would return shortly before they were due to leave - generally at 2.30 pm or 3.00 pm.[151]  Elaine's evidence was that either Mick or Jeremy would take over from her or Leanne.[152]  When Mick arrived back, Elaine or Leanne would give him 'a bit of a changeover'.[153]  I accept and find that Chris expressed her frustration to Elaine that Mick left all the time[154] and thought he should have helped more.[155]

   [151] ts 58, 296.

   [152] ts 180.

   [153] ts 180.

   [154] ts 180.

   [155] ts 181.

2. Until late February or early March 2015, Chris was still able to go outside the house, with assistance, including to the beach.  I accept and find that in or about February 2015, Elaine and Chris had a conversation at the beach.  Elaine's evidence was that:[156]

   [Chris] said to me that she was going – that she thought the best thing she would do was leave Mick now, just get it just finalised.  It was just stupid that she was there.  She would sell the house.  She would buy a unit and – overlooking the ocean and just run her days out there.  And I actually told her that she was stupid and that she shouldn't do something like that when she was in this situation.  I said, 'You're not thinking straight.  Like, you're not well enough to pack up a five bedroom house and sell it', and, 'You've only got a couple of months; what are you doing?'  And she just said, 'Like, I just think I will do that.  It's easier.'  Like, 'I don't want to be around him.  It's ridiculous.'  He's – you know, she was angry and, but, about a week later after that, she got quite ill and she sort of ended being more in bed much more than she was up to that point.  We were still managing to walk her down to the beach and take her for a coffee, but that sort of deteriorated quite quickly after that conversation and she never mentioned it to me again.

   [156] ts 170.

3. A hospital bed was brought in for Chris and set up in the lounge room.  Mick slept either on the couch next to Chris or in his bedroom.[157]  Jeremy slept either in one of the upstairs bedrooms or on the couch near Chris.[158]

   [157] ts 60.

   [158] ts 220.

4. Mick's evidence was that, prior to her death, he nursed Chris including preparing her meals and assisting her to use the bathroom.  His evidence was that Jeremy also assisted with this.[159] 

   [159] ts 61.

5. Jeremy's evidence was that he slept downstairs on the couch next to Chris so that he could look after her and that Mick slept in his bedroom downstairs.  Jeremy's evidence was that he cared for his mother the whole time he was at the Sorrento Property and was unsure whether Mick cared for his mother when he was absent.[160]  He said that he would leave the Sorrento Property for a couple of hours each morning to go shopping but was there most afternoons.[161]  He accepted that he was absent on at least two occasions for more than a day and assumed that Elaine or Leanne stayed with Chris.  Under cross‑examination, Jeremy was reluctant to accept that Mick cared for Chris on these occasions.[162]

   [160] ts 266.

   [161] ts 274 ‑ 275.

   [162] ts 266 ‑ 267.

6. I do not accept Jeremy's evidence that Mick did not care for Chris at all after Leanne or Elaine left the Sorrento Property for the day.  While I accept and find that Jeremy had significant involvement in the care of his mother after Leanne or Elaine left for the day, for the following reasons, I find that Mick nursed Chris while she was dying of cancer.  First, I accept the evidence of Elaine and Leanne that when either of them left for the day, Mick or Jeremy would take over and that when Mick arrived back, Elaine gave him a handover.  Second, Mick was there at Chris' side when she died which is consistent with him being involved in her care.

7. It was clear from all of the evidence that Jeremy and Mick do not get along.  Mick's evidence was that over the more than five months that Jeremy was at the Sorrento Property, Jeremy never spoke to him.[163]  I find that by March 2015, the tension between Mick and Jeremy was causing issues in the Sorrento Property including between Chris and Mick.

   [163] ts 59.

8. Elaine's evidence was that the relationship between Chris and Mick after her diagnosis until her death was 'very strained and very argumentative and very stressful'.[164]

   [164] ts 172.

9. On 16 March 2015, Leanne sent an email to Mick in the following terms:[165]

   Thought I would touch base as talking in the house is not the easiest of things.  Before I blurt out many things I do want to say how important you both have been to me and my family.  This is not meant as an attack but a way of trying to get through the time we have with Chris.  Not sure I have someone more important to me in the world.

   We are in a tough situation.  You seem to hate Jeremy for his lack of helping around the house and his dominance and lack of consideration for anyone but himself and his mother.  With Jeremy being in your home the pressure is considerable.  He fully believes in what ever he has put his mum through … Do I agree with it no.. but he has her doing what he asks.

   Now we have Jeremy who does not seem to like you and has had a tough time watching the way you have not paid attention to his mother in the last ten years… especially in the last 6 months.  You leave.. seemingly unconcerned about her and go out with your random friends for breakfast, lunch and dinner.  Jeremy is not in the house most of the time so your choice to be absent is confusing. Stay around for a meal.. even if you don't eat the food.

   You have turned your anger for Jeremy to Chris.  You are arguing with a person who has brain tumours…. you are grimacing when she forgets what was said hours before.  She is here for a short time Mick.  Maybe if you need to talk about being angry I will work out how to talk or get help to talk.  She wants you around but you don't even say goodbye when you leave… never expect the next hour to be there because it may not.

   Chris is asking what she has done wrong to deserve your lack of attention. Sickness brings different emotions.. maybe you deal differently but we will be surrounding her with love, attention and after she is gone we will feel blessed that we had this special time with her.  She has not passed yet.  Make the days count and somehow rise above the shit with Jeremy.  If it was reversed I hope Danny, Simon and Mark would stand strong by you and make the days worthwhile.

   With love

   Leanne

   [165] Exhibit 1, TB, Tab 34.

10. It is clear from the contents of this contemporaneous email and I find that that as at mid‑March 2015:

    (a)Jeremy and Mick disliked each other and their dislike for each other impacted on everyone in the house;

    (b)Chris wanted Mick to be around and could not understand Mick's lack of attention to her;

    (c)Chris considered that Mick was her partner and that they were still in a relationship; and

    (d)Leanne considered that Mick and Chris were in a continuing relationship.  If she had thought the relationship was over, she would not have sent an email of this tone and subject matter.  I consider, given the manner in which she gave her evidence, that she would have made it clear that the relationship was over, if that was the case.

11. The situation between Jeremy and Mick continued to deteriorate and this continued to cause stress for everyone, including Chris.  For this reason, in early April 2015, Chris went to stay with Leanne and her family for about five days.  During Chris' stay with Leanne, Jeremy went down to visit Chris but neither Mick nor Nathan visited Chris or contacted her or Leanne to ask about Chris.

12. On 6 April 2015, Leanne emailed Elaine in the following terms:[166]

    Hi Elaine

    Have had great five days.  Eating more, sleeping more and stress free.  Only bizarre thing [i]s that both Mick and Nathan have not called to ask if Chris is okay or how her days have been!!  Jeremy stayed over for one night.  Going back tomorrow to drop Chris off and I will spend two days with Clark as Riley is off down south for two days.  Will touch base tomorrow.

    [166] Exhibit 1, TB, Tab 35.

13. On the same day, Leanne emailed Mick in the following terms:[167]

    Hi Mick

    Hope all is well.  Was awaiting your daily calls to check in to see how Chris was going… She is fine.  Will be bringing her back tomorrow as I will be seeing Clark for two days as Riley [i]s going down south.  Hope you have had a break.

    Lea

    [167] Exhibit 1, TB, Tab 36.

14. It is clear from the contents of these contemporaneous emails and I find that that as at 6 April 2015:

    (a)she had expected Mick to be in regular contact with her; and

    (b)this is consistent only with a view that Mick was Chris' partner and that they were still in a relationship.

Possible sale of Sorrento Property

1. Louie gave evidence that he recalled one specific lunch with Elaine, Leanne and Chris where they had lunch outside next to the swimming pool at the Sorrento Property.  This occurred 'very much towards the end'.[168]  He recalled that Chris said:

   she wanted to sell the house and that she wanted to move into an apartment overlooking the ocean, and then she basically turned to me and said could I speak to Mick to make it happen.

   [168] ts 187.

2. Louie agreed that he never had a conversation with Mick because Chris' health deteriorated quite rapidly after this. 

3. Neither Leanne nor Elaine were asked about this conversation in their evidence or gave evidence that this discussion occurred.  For this reason, I do not accept this evidence and find that this conversation did not occur.

4. Leanne's evidence was that there was a conversation in or around March 2015 about fixing up the Sorrento Property for sale.  Her evidence was that:

   [Chris] said she wanted to sell it and there was mould in the front room and whatever, and Jeremy said, 'Well, I will get my mate to come over and sort it out,' and Mick is like, 'No.  I've got a mate who can fix it.'  And she's like, 'Get it in order,' and that's what was said. 

5. This evidence is consistent with Mick's evidence under cross‑examination that after Chris' diagnosis with cancer, Chris told him that she wanted to fix up the Sorrento Property for sale but denied that she told him that she wanted to move into a unit by herself.[169]  It is also broadly consistent with the evidence of Jeremy and Nathan.

   [169] ts 109 ‑ 110.

6. Jeremy recalled a conversation between Chris and Mick where she told Mick, in his presence as well as a couple of other people, that she wanted the Sorrento Property to be made ready for sale.  He did not recall the date of this conversation.[170]

   [170] ts 222.

7. Nathan recalled that, in the presence of Jeremy:[171]

   She mentioned that she wanted the renovations to get underway so that the house could be ready for sale so that an amicable split could be made when she passed on.

   [171] ts 285.

8. I accept and find that prior to Chris' death, Chris had a conversation with Mick in the presence of Jeremy, Leanne and Nathan where Chris told Mick that she wanted work to be done to the Sorrento Property so that the house could be ready for sale.  I find that Chris did not tell Mick in this conversation that she wanted to sell the Sorrento Property so she could move out.

9. Louie also recalled a conversation with Chris between March and June where:[172]

   she drew me close – she – she drew me close to her and whispered to me, 'Don't let Mick take my money,' to which I basically replied – I said to her, 'I swear that I will look after your interests,' and I have.

   [172] ts 188.

10. This evidence is consistent with an affidavit that Louie affirmed in November 2018.[173]  I accept Louie's evidence and find that this conversation occurred and that Chris' concern was about her money, which at or about that stage comprised almost $850,000, and not her share in the Sorrento Property.

    [173] Exhibit 1, TB, Tab 204 [12] ‑ [13].

11. Prior to Chris' death, Jeremy had a conversation with Chris regarding her will.  He recalled that she was concerned that 'Mick was going to try and take her half of the house'.[174]  This conversation was not included in Jeremy's outline of evidence.  When he was asked why it was not included, his explanation was that at the time he was doing his statement, he did not recall the conversation or didn't realise it was important.[175]

    [174] ts 225.

    [175] ts 273.

12. I do not accept Jeremy's evidence that this conversation occurred.  This conversation is not referred to in Jeremy's outline, which was prepared in October 2017, two years before he gave evidence in these proceedings.  In his outline, Jeremy refers to conversations he had with Chris about the contents of her will and her desire to sell the Sorrento Property.  It is difficult to reconcile the absence of a reference to this conversation, if it occurred, with the remaining contents of his outline.  I consider that if this conversation had occurred, Jeremy would have included it in his outline.

Chris' death

1. Mick was at Chris' side when she died.  Mick's evidence was that:[176]

   Just after midnight, of the day before.  And Jeremy had trouble getting the wheelchair around the corner into the toilet.  And there was a bit of – it was – he started blowing up his brain.  So, I got out of bed and said, 'I will put her back into bed.'  And so, he went into the front room.  There's lounge – there's two lounges in the front. And she said, you know, 'Could you ring an ambulance?'  And I said, 'Look, if you're feeling this way when you wake up in the morning, I will ring an ambulance.'  Anyhow, I laid on the couch.  On the right-hand side, the bed is there.  And about quarter to 6 – 20 to 6, she was tap-tap.  And I said, 'Do you want a pain killer?' And she said, 'Yes.'  And I got a pain killer, and she was perspiring.  And by the time I went and got a phone, turned around, and went to put it there, she had gone.

   [176] ts 64 - 65.

2. This is consistent with the evidence of Jeremy that he was asleep in the front room on the couch when Mick yelled out to him at about 6.00 am that Chris had stopped breathing.[177]  Mick called an ambulance while Jeremy performed cardio‑pulmonary resuscitation on Chris until the ambulance arrived.  Jeremy went in the ambulance with Chris to the hospital where she died.[178]

   [177] ts 225.

   [178] ts 225.

3. Mick rang Louie and Leanne to let them know what had occurred and they met them at the hospital.[179]  When Leanne arrived at the hospital, Chris had already died.  Mick told her that he had not wanted to tell her over the phone because he knew how upset she would be.[180] 

Chris' death certificate

[179] ts 65.

[180] ts 306.

1. The death certificate had provision for the name of Chris' de facto partner as at the date of her death to be included.[181]  The death certificate does not include Mick's name; instead this section has been left blank. 

   [181] Exhibit 1, TB, Tab 37.

2. The informant, for the purposes of the death certificate, was Malene Andersen of Mareena Purslowe and Associates, although it is clear from the oral evidence that she completed the death certificate on instructions from others.  Ms Andersen was not called as a witness at trial by either the plaintiff nor the defendants.

3. After Chris' death, Louie appointed Mareena Purslowe as the funeral directors for Chris' funeral and organised for Leanne, Elaine, Jeremy and Mick to meet with him and Ms Andersen to discuss the arrangements for the funeral.[182]

   [182] ts 189.

4. The evidence of Mick, Louie and Leanne was that the death certificate was filled in at a meeting with Ms Andersen.  Elaine was not asked any questions in examination in chief or cross examination about this meeting.  Jeremy did not recall any meeting where the death certificate was discussed and believed it was filled out at the hospital.[183]

   [183] ts 226.

5. Mick's evidence was that he could not recall a question being asked at this meeting as to whether Chris had a de facto partner.[184]  He said that he wasn't aware he had not been named as Chris' de facto in the death certificate until he was provided with a copy of it.  When he was shown it by Louie after Chris' death, he was upset and Louie said he would fix it up.  Mick's evidence was:[185]

   I said, 'Don't bother.' I was that upset with them.  So, they didn't have the decency to put my name on it, so I said, 'If” – 'Forget it.'

   [184] ts 111 - 112.

   [185] ts 66.

6. Louie gave evidence that during the course of the meeting, Ms Andersen filled out the death certificate.  Specifically, his evidence was:[186]

   [Malene] would pose the – a line item of the death certificate and she would basically invite a response from the people.  And there was one particular item that – one particular item was the – was to name the de facto partner's name at the time of death.  Okay.  And when – when she – when she was – there was a very long pause.  Nobody was prepared to commit it.  Sensing the – discomfort of everybody, Malene then changed the subject and basically said, 'Well, fill that later on,' and then she just continued with the next – with the other line items.

   [186] ts 189.

7. After this meeting, Ms Andersen gave Louie the death certificate to complete.  His evidence was that:[187]

   I didn't include Mick's name there, because I felt very uncomfortable that everybody else was not prepared to commit – everybody else, including Mick, was not prepared to commit to naming the de facto partner.

   [187] ts 189.

8. Louie acknowledged that approximately three months after Chris' death, his brother‑in‑law told him that Mick was unhappy that his name did not appear on Chris' death certificate as her de facto partner.  Louie contacted the Registry of Births, Deaths and Marriages to discuss if and how they could amend the death certificate to include Mick's name as Chris' de facto partner.  After finding out how this could be done, he sent a text to Mick to offer to meet so that this could be done.  Louie's evidence was that he didn't receive any response from Mick.[188]

   [188] ts 190 ‑ 191.

9. Leanne's evidence was that she attended the meeting at the funeral parlour, together with Mick, Louie and Jeremy.[189]  She recalled a discussion to fill in the details of the death certificate.  Her evidence was that a question was asked as to whether Chris was married, to which the response was no but that no question was asked about whether Chris had a de facto partner.[190]

   [189] ts 307.

   [190] ts 307.

10. I prefer the evidence of Mick and Leanne to Louie as to what occurred at the meeting with Ms Andersen.  I consider that Leanne would have recalled a question being asked about whether Chris had a de facto partner and the answer or reaction to that question, had this occurred.  This is because during the balance of her evidence, she did not hesitate in recalling incidents or giving evidence that did not support the plaintiff's case. 

11. The evidence of Leanne and Mick is also more consistent with the reaction of Mick on being provided with a copy of the death certificate and Louie's reaction on hearing of Mick's displeasure at not being named on the death certificate, namely that he would take steps to correct this. 

12. For these reasons, I find that the question as to whether Chris had a de facto partner at the date of her death was not asked by Ms Andersen in the presence of Mick and that Mick did not have an opportunity to respond to that question.  I find that this part of the death certificate was completed by Louie after this meeting and that he did not include Mick's name as Chris' de facto partner.

13. Given that both Mick and Louie's evidence was that Louie was prepared to amend the death certificate to include Mick's name as Chris' de facto partner after her death, I do not consider that any weight can be attached to the failure to include Mick's name as Chris' de facto partner on her death certificate.

Chris' funeral

1. Louie gave evidence about a meeting prior to Chris' funeral with Verity James, who was the celebrant at the funeral service.  He invited Elaine, Leanne, Mick and Jeremy to attend this meeting to discuss the funeral service.[191] 

   [191] ts 190.

1. The plaintiff submitted that Jeremy has been left in a secure financial position following the distribution of cash from Chris' estate, as well as his current living arrangement at the Menora Property with Nathan.[278]  They contended Jeremy has a strong share portfolio and no dependants to support and will suffer no financial hardship should the Sorrento Property be transferred in full to Mick.

   [278] Plaintiff’s closing submissions [144] - [145].

2. I do not accept that Jeremy's net assets as at the date of Chris' death were sufficient to adequately provide for his monthly expenses and provide him with enough funds to cover the exigencies of life.  Whilst Jeremy's financial position has improved as a result of the distribution of Chris' estate, it remains relatively modest.

3. As set out below at [291] ‑ [292], the size of Chris' estate should ensure that adequate provision is made for both the plaintiff and the second defendant.

Totality of relationship between Mick and Chris (the 'moral claim' question)

1. For the following reasons, I find that Mick had a moral claim on Chris' estate to provide him with appropriate accommodation as well as a buffer against the financial exigencies of life.

2. First, Mick has lived at the Sorrento Property for over 15 years.  As Chris' de facto partner of 24 years, I consider that he is entitled to be provided with a place to live which is broadly equivalent to what he has been used to over this period.

3. Second, I accept and find that during the six months that Chris was terminally ill, Mick assisted with her care.

4. Third, for the following reasons, I accept that Mick's contributions substantially contributed to the value of Chris' estate.

5. Mick gave evidence that in 1994, he provided Chris with $149,000 to purchase an interest in the Freemason's Hall in Subiaco in a syndicate with her brother and sister,[279] known as the Mason syndicate.[280]  His evidence was that Chris never repaid this amount.  This evidence is broadly consistent with the terms of his will which refers to a loan to Chris of $149,000, although no description or details of what the loan was for was included in his will.

   [279] ts 80.

   [280] Exhibit 1, TB, Tab 10.

6. Louie confirmed that Chris invested in the Mason syndicate.  He was not sure where Chris obtained the money for this investment but believed that at least some of it came from their father.[281] 

   [281] ts 206.

7. Chris received distributions from the Mason syndicate[282] prior to the sale of the property in 2005.  Chris received a cheque for $763,746 on 28 July 2006[283] which I find was a repayment of the initial investment as well as her share of the profit from the Mason syndicate.

   [282] Exhibit 1, TB, Tabs 10, 12, 14, 21, 25.

   [283] Exhibit 1, TB, Tab 25.

8. I find that Mick loaned Chris $149,000 towards her purchase of an interest in the Mason syndicate, the loan was not repaid prior to her death, and that this loan significantly contributed to Chris' cash assets as at the date of her death.

9. Mick also gave evidence that on 16 June 2008, he paid the Australian Taxation Office $54,915 on Chris' behalf.[284]  The only evidence that was tendered in support of this evidence were Mick's bank statements which showed that a cheque for $54,915.55 was presented on 16 June 2008.[285] Mick was not challenged on this evidence in cross‑examination.  I accept that Mick paid this amount on Chris' behalf.

   [284] ts 84.

   [285] Exhibit 1, TB, Tab 212, p 615.

10. In addition to these matters, Mick gave evidence that, on occasions, he purchased shares in the name of Chris.  This occurred when a company was doing an initial public offering and required a minimum number of shareholders.  His evidence was that two of the parcels of shares in Chris' estate which were valued at $1,040 had been purchased by him.[286]  For this reason, I accept and find that some of the shares in Chris' estate were purchased by Mick on her behalf.

Conclusion

[286] ts 85 - 86; Exhibit 1, TB, Tab 39.

1. For the following reasons, I do not consider that this is a case where those who stand to benefit from the disposition of Chris' share of the Sorrento Property, namely Jeremy and Nathan, have stronger moral claims on the estate than Mick.

2. First, the difficulty which the Will poses is that the Sorrento Property will need to be sold so that Jeremy and Nathan can realise their interest in it.  This will have the effect that Mick is ejected from his home.  I find that the deceased's Will which has the practical effect of requiring that her de facto spouse be ejected from the matrimonial home fails to make adequate provision for his proper maintenance. 

3. Second, Mick paid for the Sorrento Property, subject to my findings at [64], [184] and [194] above, and has resided there for over 15 years, 11 of those with Chris.  The evidence, which I accept, is that Chris and Mick moved to the Sorrento property with the intention of making it their permanent home and spending the rest of their lives there.  It was Chris and Mick's home at the date of her death.  In my view, the community would expect, in all the circumstances, that Chris would make provision in her Will for Mick to continue to reside at the Sorrento Property for as long as he wanted to or, in the alternative, have a share in her interest in the Sorrento Property.

4. In my view, as at the date of Chris' death, Nathan had financial needs that could not be met from his own resources.  I also consider that Jeremy had a moral claim on Chris' estate to provide him with a buffer against the financial exigencies of life and to provide him with assistance in improving his prospects in life.

The discretionary question

1. Having found that the Will did not make adequate provision for the proper maintenance, support, education and advancement in life of the plaintiff, the court is required to exercise the discretion, taking into account the facts as they currently exist.  In doing so, I take into account the considerations that would inform a just and wise testator.

2. In doing so, the discretion is not to be exercised for the purpose of making what may appear to the court to be a fair distribution of Chris' estate.  A relevant and important consideration in the exercise of my discretion is freedom of testamentary disposition.

3. Counsel for the plaintiff submitted that a wise and just testator would have left the entirety of her share in the Sorrento Property to the plaintiff.  Counsel for the defendants submitted that a wise and just testator would have left her share in the Sorrento Property to her two sons, as she did, as they have a longer life expectancy than the plaintiff.[287]  The defendants drew my attention to the fact that the plaintiff's assets had declined by over $380,000 over the four years since Chris death and submitted that the plaintiff should not be 'rewarded … for failing to look after his own interests'.[288]

   [287] ts 150.

   [288] ts 373.

4. I do not accept either of these submissions.  In my view, neither of these positions reflect the age of the plaintiff, the moral obligation of Chris to provide for Mick or Chris' freedom to dispose of her estate as she saw fit.

5. In relation to the financial position of the parties as at the date of the hearing, as noted above, the financial position of Mick had deteriorated and the financial position of Jeremy and Nathan had significantly improved, largely as a consequence of the distribution of the remainder of Chris' estate.

6. At the date of the hearing, Nathan's financial position was significantly stronger than either Mick or Jeremy.  He inherited the Menora Property from Chris and received a cash distribution from the estate of in excess of $400,000.  Nathan is currently employed earning $3,600 gross a week and is likely to be able to work for a significant period of time.  As at the date of the hearing, I do not consider that Nathan has unmet financial needs.

7. At the date of the hearing, Jeremy's assets were still relatively modest as he received a lesser distribution from Chris' estate being a cash distribution of in excess of $400,000.  I consider that Jeremy has unmet financial needs.

8. In respect of Mick's financial position, while the Australian Taxation Office has classified the tax liability as uneconomic to pursue, I consider it is possible that this position may change and that an allowance should be made for the contingent possibility that Mick may be pursued for the outstanding taxation liability of approximately $400,000.  I do not consider that an allowance should be made for the contingent possibility that Mick may be pursued for the general interest charge as this is, in my view, too remote a possibility.

9. I consider that Mick's needs are greater than those of Nathan, particularly given the inheritance that Nathan received under the Will.  Nathan's needs can be adequately met from his own resources and the distribution he has already received from Chris' estate.

Size of Chris' estate

1. Chris left a relatively substantial estate which was valued at $2,532,304.77.  Her estate, at the time of her death, comprised the Menora Property (valued at $900,000), a 50% interest in the Sorrento Property (valued at $750,000), money in bank accounts ($842,729.77), shares (valued at $10,075) and a motor vehicle (valued at $29,500).

2. Since that date, the value of the Menora Property has increased and the value of the Sorrento Property has decreased.

Conclusion

1. After considering all of the evidence before me, and after taking into account all relevant circumstances including:

   (a)the size of Chris' estate;

   (b)the nature of the relationship between Chris and Mick, in that it was a longstanding de facto relationship of more than 20 years;

   (c)Mick's age as at the date on which judgment is to be delivered;

   (d)Mick's financial and other circumstances;

   (e)contingencies (including remote contingencies) which may arise in the future having regard to Mick's circumstances and the vicissitudes of life generally including the possible liability to the Australian Taxation Office;

   (f)the nature of the relationship between Chris and other persons with legitimate claims on her estate, namely her two sons, Jeremy and Nathan;

   (g)the financial and other circumstances of Nathan and Jeremy; and

   (h)what Chris regarded as superior claims or preferable dispositions in relation to her estate,

   I consider that adequate provision from Chris' estate for Mick's proper maintenance, support, education or advancement, requires that he be provided with a 50% share of Chris' interest in the Sorrento Property.  In my view, an order that Mick receive the entirety of Chris' interest in the Sorrento Property would be more than what is required to provide adequate provision for his proper maintenance and support.

2. In this case, Chris' estate is large enough to make provision for Mick's proper maintenance and support and to meet the second defendant's legitimate claims to the bounty from her estate as at the date of Chris' death.

3. In reaching this decision, I considered whether adequate provision for Mick's proper maintenance and support could be achieved by granting Mick a life interest in the Sorrento Property until it ceased to be his principal place of residence.  For the following reasons, I do not consider this is an appropriate order in this case.

4. First, if a life estate was granted, the relationship between the parties would need to continue, potentially for more than 12 years.  This could give rise to continued acrimony between them.  Chris knew of the tensions between Mick and Jeremy. Acting wisely and justly, she would have ensured that they were not required to continue a relationship after her death.  Accordingly, any order that requires the parties to maintain a relationship is not optimal.  For this reason, I consider that an order which terminates the relationship between Mick and Chris' family is in the best interests of all of the parties.

5. Second, the effect of an order of this nature would be to hold Jeremy out of his share of the Sorrento Property while it remained Mick's principal place of residence.

6. Third, making a provision for Mick of a 50% interest in Chris' share of the Sorrento Property will enable him to purchase a smaller suitable property for him which is to be preferred.  This in my view balances the recognition that Mick should be independent whilst retaining respect for Chris' wish that her sons obtain her interest in the Sorrento Property.

7. Having regard to these matters, in my assessment, a disposition of 50% of the deceased's interest in the Sorrento Property would be an adequate and proper provision for Mick.

8. I consider that this provision can be achieved by Mick receiving Nathan's interest in the Sorrento Property.  Jeremy will continue to receive the other 50% of the deceased's interest in the Sorrento Property.

9. It is appropriate that the executors allow Mick a proper interval to relocate himself from the Sorrento Property which has been his home for the past 15 years.  Orders should be made to protect him in this respect.

10. I will hear from the parties in relation to the form of the orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Research Orderly to the Honourable Justice Hill

28 APRIL 2020

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION: RYAN -v- ZEKAS [2020] WASC 124 (S)

CORAM:   HILL J

HEARD:   ON THE PAPERS

DELIVERED          :   16 JUNE 2020

PUBLISHED           :   16 JUNE 2020

FILE NO/S:   CIV 1144 of 2016

BETWEEN:   BRIAN THOMAS RYAN

Plaintiff

AND

LOUIE ZEKAS

First Defendant

JEREMY LEE JAMES

Second Defendant

NATHAN WILLIAM JAMES

Third Defendant

Catchwords:

Costs - Family provision claim - Successful application by de facto partner - Where plaintiff seeks costs - Where unsuccessful defendants apply for costs to be paid out of the sale of the property - Whether special costs order should be made - Turns on own facts

Legislation:

Family Provision Act 1972 (WA)
Legal Profession Act 2008 (WA)
Legal Profession (Supreme and District Courts) (Contentious Business) Determination 2018 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Defendants to pay the plaintiff's costs fixed in the amount of $100,580.05

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr E Ferreira
First Defendant	:	Mr J R Shepherd
Second Defendant	:	Mr J R Shepherd
Third Defendant	:	Mr J R Shepherd

Solicitors:

Plaintiff	:	Douglas Cheveralls Lawyers
First Defendant	:	Blackwall Legal LLP
Second Defendant	:	Blackwall Legal LLP
Third Defendant	:	Blackwall Legal LLP

Case(s) referred to in decision(s):

AGC Industries Pty Ltd v Karara Mining Ltd [2019] WASC 140 (S)

D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265 (S)

Daniels v Hall [No 2] [2014] WASC 272

Dean v Collins [No 2] [2015] WASCA 151

Frigger v Lean [2012] WASCA 66

Ryan v Zekas [2020] WASC 124

Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S)

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

HILL J:

1. Following the publication of reasons for decision on 28 April 2020, the parties were ordered to file submissions in support of any application for costs.  These reasons should be read with the earlier reasons for decision.[289]

   [289] Ryan v Zekas [2020] WASC 124.

2. The plaintiff seeks special costs orders and an order that the defendants pay the plaintiff's costs of the proceedings fixed in the sum of $130,791.15.  The defendants contend that the costs of both the plaintiff and the defendants should be fixed in the sum of $75,000.  The defendants' primary submission is that these costs should be payable from the sale of the Sorrento Property.  In the alternative, the defendants submit that 50% of the plaintiff's costs should be paid by the second defendant from the proceeds of the Sorrento Property with the remainder of the plaintiff's costs, together with the defendants' costs, paid from the proceeds of the sale of the Sorrento Property.

3. For the reasons that follow, I consider that the defendants should pay the plaintiff's costs of the proceedings fixed in the sum of $100,580.05. 

General principles as to costs in Family Provision matters

1. Under s 37 of the Supreme Court Act 1935 (WA), the court has a wide discretion to award costs. However, the discretion is not unfettered and must be exercised judicially.[290]

   [290] Frigger v Lean [2012] WASCA 66 [53].

2. The general rule is that costs should follow the event; that is, the successful party should recover their costs from the opposing party.[291] 

   [291] Rules of the Supreme Court 1971 (WA), O 66 r 1(1).

3. As was noted by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[292]

   What constitutes 'success' in proceedings is to be determined by the reality of the circumstances involved in the case.  The Court may depart from the general rule that costs follow the event and modify a costs order to take into account matters such as any unreasonable conduct of a generally successful party, or to the failure of that party on one or more specific issues.  The exercise of the discretion in that way is recognised by a number of rules in the [Rules of the Supreme Court], together with the practice of the Court, and authority.  So, for example, if the Court is of the opinion that the conduct of a successful party - either before or after the commencement of the litigation - has resulted in costs being unnecessarily or unreasonably incurred, the Court may deprive that party of costs, either wholly or in part, and it may further order that party to pay the costs of an unsuccessful party, either wholly or in part. (footnotes omitted)

   [292] Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 [50].

4. Costs of actions under the Family Provision Act 1972 (WA) (the Act) are specifically dealt with in s 14(6) of that Act. This section provides that the Court may make such order as to costs of any proceeding under the Act as it deems just.

5. In Daniels v Hall [No 2],[293] EM Heenan J explained why the general rule that costs should follow the event was not invariably applied in proceedings brought under the Act and that it was not uncommon for orders to be made that the costs of a successful applicant should be paid out of the estate.  Essentially, this is because the power of the court to make an award is not enforcing the applicant's rights but involves a consideration as to whether the testator made adequate provision for a particular applicant.

   [293] Daniels v Hall [No 2] [2014] WASC 272 [13] - [23].

6. In Dean v Collins, Chaney J set out the general policy of the court as to the costs of proceedings brought under the Act in the following terms:[294]

   [I]t is now the general policy of the court to order that the costs of proceedings under the Family Provision Act be borne by the beneficiaries or claimants who were unsuccessful in the proceedings. The reasons for that policy are exemplified by this case. First, an order that the costs be paid out of the estate would, in effect, have the consequence that the successful appellant would be bearing one third of her own costs. Second, the substantive parties to the dispute which was litigated were the appellant and the named beneficiaries. As the named beneficiaries were unsuccessful in their opposition to the appellant's claim, there is no reason why the usual practice as to costs should not apply, with the consequence that they should be ordered to pay the appellant's costs.

   [294] Dean v Collins[No 2] [2015] WASCA 151 [34] (Martin CJ & Buss JA agreeing).

7. These proceedings were commenced on 29 January 2016 with the trial occurring in September 2019.  For that reason, the work done by each of the party's solicitors is covered by three different costs determinations: the Legal Profession (Supreme Court) (Contentious Business) Report 2014 (WA) (2014 Costs Determination); the Legal Profession (Supreme Court) (Contentious Business) Report 2016 (WA) (2016 Costs Determination); and the Legal Profession(Supreme and District Courts) (Contentious Business) Determination 2018 (WA) (2018 Costs Determination)

1. Prior to the 2018 Costs Determination, there was no specific item for actions under the Act.  Costs were dealt with under Item 11 of Table B of the relevant determinations as an originating summons.  In the 2018 Costs Determination, a new Item 12 of Table B was introduced to deal with costs of these types of action. 

2. If the entirety of the work fell within Item 12 of Table B of the 2018 Costs Determination, the maximum amount that could be recovered by the plaintiff would be limited to $78,042.  For this reason, unless a special costs order is made, the costs of the application will not be more than that Item together with allowances for any other work under the relevant costs determination.

3. The defendants did not concede that a special costs order should be made under s 280(2) of the Legal Profession Act 2008 (WA). In their submission, this matter was not unusually difficult, complex or important and that the maximum allowed by the scale was sufficient.

4. Pursuant to s 280(2) of the Legal Profession Act 2008 (WA):

   [I]f a court or judicial officer is of the opinion that the amount of costs allowable in respect of a matter under a costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court or officer may do all or any of the following ‑

   (a) order the payment of costs above those fixed by the determination;

   (b) fix higher limits of costs than those fixed in the determination;

   (c) remove limits on costs fixed in the determination;

   (d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or assessed.

5. The principles concerning special costs orders under s 280(2) of the Legal Profession Act are well settled.[295] Before exercising the power under s 280, the court must form an opinion which has two components. First, the court must determine that the amount of costs allowable under the relevant legal costs determination is inadequate. Second, the court must conclude that the inadequacy arises because of the unusual difficulty, complexity or importance of the matter.

   [295] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] [2017] WASCA 76 (S) [11] - [16].

6. It is not necessary for the court to find that the costs allowable under the relevant determination are inadequate; it is sufficient if the court considers it is fairly arguable that a greater amount should be allowed than that allowable under the relevant determination.[296]

   [296] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [13].

7. The exercise of determining whether the amount of costs allowable is inadequate is more straightforward where the question relates to the time reasonably spent compared with that allowed.  It is more difficult where the question is whether the costs allowable under the determination are not adequate because the prescribed hourly rate would result in inadequate compensation for the successful party.[297]

   [297] AGC Industries Pty Ltd v Karara Mining Ltd [2019] WASC 140 (S) [9].

8. The adjective 'unusual' qualifies only the 'difficulty' of the matter, and not its 'complexity' or 'importance'. In the context of s 280 of the Legal Profession Act, this means having regard to the 'usual run of civil cases determined in the court'.[298]  This essentially involves the making of a value judgment by the court, having regard to the court's experience of the particular case when compared with the usual run of cases. 

   [298] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [15].

9. The reference to 'importance' allows the court to have regard to the significance of the issues that arose in the litigation.  Significance can arise either because of the significance of the issues to the parties, or because of the significance of the issues to other prospective parties, or to the public or community generally.[299]

   [299] Sino Iron Pty Ltd v Mineralogy Pty Ltd [No 2] (S) [15].

Costs of the parties

1. On 28 April 2020, I ordered that the parties file and serve a memorandum setting out that party's costs.  The costs of each party in respect of the proceedings were:

Party	Costs incurred	Maximum costs under 2018 Costs Determination[300]
Plaintiff	$130,791.15	$78,042
Defendants	$120,463.50	$75,292[301]

[300] This includes for both parties the maximum allowance for proceedings in chambers, to cover the plaintiff's chambers summons for an interlocutory injunction.  It also assumes the attendance of an instructing solicitor at trial for 6 hours a day.

[301] Given that the executor and beneficiaries were represented by the same solicitors, this assumes that one allowance would be made for the parties under Item 12.

1. I note that Chris' estate, apart from the Sorrento Property, has already been distributed.  However, if the full amount of the parties' costs were paid from the estate, the residue of Chris' estate would still be more than $2.2 million.

2. The parties were in agreement that I should fix the costs of the proceedings to prevent further disputes between the parties.  It is the usual practice to direct that issues regarding the quantum of costs be determined by a taxing officer following taxation, with the exception of costs of interlocutory applications.  The advantages and disadvantages of this practice are summarised by Martin CJ in D & Z Constructions Pty Ltd v IHI Corporation.[302]

   [302] D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265 (S) [7] - [9].

3. In this case, having regard to the relative simplicity of the costs sought by each of the parties, the fact that the parties have exchanged submissions in relation the matter and the advantages from my familiarity with the issues in the case in assessing the amounts claimed, I have concluded that the appropriate course is for me to fix the amount of the parties' costs.

Plaintiff's submissions

1. The plaintiff contended that his costs should be paid by the defendants without reference to the limits provided in the 2018 Costs Determination and fixed in the sum of $130,791.15, being the amount paid by the plaintiff to his solicitors.  In support of this submission, the plaintiff submitted that a substantial issue at trial was whether the plaintiff and the deceased were in a de facto relationship, on which the plaintiff was entirely successful.

2. The plaintiff contended that these proceedings were both unusually difficult and complex as well as important to the plaintiff.  In support of this submission, the plaintiff referred to the length of the opening and closing submissions, the fact that substantial discovery was provided by the parties which is not usual in claims under the Act, and the length of the trial.[303]

   [303] Plaintiff submissions (19 May 2020) [32].

3. The plaintiff submits that the maximum amounts allowable under Table B of the 2018 Costs Determination be lifted to reflect the significant work that was done.  In addition, the plaintiff seeks additional allowances for costs for discovery, inspection and the preparation of witness statements.

Defendants' submissions

1. The defendants contended that the costs of both parties should be fixed at $75,000 and paid from the proceeds of the Sorrento Property.  The defendants submitted that the plaintiff was not entirely successful at trial.  While he succeeded in his claim that he was the de facto partner of the deceased, he did not obtain orders in terms of the originating process for the transfer of the entirety of the deceased's share in the Sorrento Property to him and repayment of a loan of $149,000.[304] 

   [304] Defendants submissions (27 April 2020) [5(a)].

2. The defendants submitted that no special costs order ought to be made as these proceedings were not unusual or complex.  The defendants contended that any complexity was due to separate proceedings that had been commenced by the plaintiff.

3. The defendant specifically objected to any allowance being made for the plaintiff's costs of the preparation of witness statements and discovery.  This was on the basis that these costs were incurred in CIV 1021 of 2017, which was discontinued by the plaintiff.  In support of this submission, the defendants provided me with an unpublished judgement of Registrar Dixon delivered on 6 November 2018.[305]

   [305] Annexure C to Defendants' submissions.

Disposition

Plaintiff's costs

1. A significant issue at trial was whether the plaintiff and the deceased were in a de facto relationship at the time of the deceased's death, which was denied by the defendants.  The plaintiff was successful on this issue.  I accept that the plaintiff was not entirely successful in the proceedings as he did not obtain an order that the whole of the deceased's interest in the Sorrento Property be transferred to him or the loan be repaid.  However, in my view, most of the time at trial (both in submissions and the evidence of witnesses) concerned whether the plaintiff and the deceased were in a de facto relationship at the time of her death.  The remaining evidence as to the financial positions of each of the plaintiff and the second and third defendants as well as the circumstances of the loan would have been required even if the plaintiff's claim had been limited to the relief granted by the court.  For this reason, it is my view that the plaintiff was successful in these proceedings and is entitled to his costs. 

2. I consider that in line with the general policy of this court, these costs should be paid by the defendants.  If these costs were paid out of the sale of the Sorrento Property, the plaintiff would be paying 50% of his own costs.  In my view, that would not be a just outcome.

3. Turning to the question as to whether special costs orders should be made, the memorandum filed by the plaintiff's solicitors makes it clear that the amount payable under the 2018 Costs Determination would be inadequate.

4. In my view, the issues raised in these proceedings were unusually difficult and complex.  The trial in this matter went for four days and a relatively large number of witnesses gave evidence.  This was because the defendants contended that the plaintiff was not in a de facto relationship with the deceased at the time of her death which meant that evidence was adduced as to the plaintiff's relationship with the deceased over the length of their relationship.  It was also necessary for the plaintiff to address a significant number of legal authorities.

5. I also accept that the application was important to the plaintiff in the relevant sense.  I consider that the questions as to whether an allowance should be made from the estate of the deceased to the plaintiff and the nature of his relationship with the deceased at the time of her death were important to the plaintiff.

6. For these reasons, I am of the opinion that the amount of costs allowable in respect of the application by the plaintiff under the three costs determinations is inadequate because the proceedings were unusually difficult, complex and important. As a consequence, my discretion to make a costs order under s 280(2) of the Legal Profession Act is enlivened.

7. The relevant items in Table B of the 2018 Costs Determination are:

   (a)Item 12 - $65,502 (for a plaintiff) - based on a 4 day hearing, 2 days preparation, an allowance of 40 hours for the preparation of the case and the attendance of an instructing solicitor at trial;

   (b)Item 10(a) (application for interlocutory injunction) - $12,540.

8. In my view, the time allowed for this application under Item 12 (by reference to Item 11) of Table B of the 2018 Costs Determination is inadequate having regard to the unusual difficulty, factual complexity and importance of the matter as well as my assessment as to the amount of work which was reasonably necessary to prepare for the application. 

9. The plaintiff has separately claimed costs for discovery, inspection and preparation of witness statements.  I do not accept the defendants' submission that the plaintiff is not entitled to an allowance for these items.  The reasons of Registrar Dixon, on a review of the taxation of costs in separate proceedings between the parties, make clear that he allowed a claim by the defendants for their costs of the witness statements in CIV 1021 of 2017 because at that stage it was unclear as to the extent the statements would be relied upon in these proceedings.  This was for two reasons: first, it was not certain if this matter would go to trial, and second, the witness statements contained a significant amount of material not relevant to these proceedings.  For those reasons, Registrar Dixon considered that the defendants' costs in relation to the preparation of the witness statements were properly recoverable in CIV 1021 of 2017.

10. What has since transpired is that these proceedings did go to trial and the witness statements of the plaintiff's witnesses stood as the outlines of evidence.  For that reason, it is appropriate that the plaintiff's costs include the preparation of these witness statements.

11. However, this does not mean that the plaintiff is entitled to a separate allowance for these matters. In proceedings under s 7(1) of the Act, all work up to and including judgment, not included in Items 12(a) or (b) of Table B of the 2018 Costs Determination, is calculated in accordance with Item 11(a) of Table B of the 2018 Costs Determination. Similarly, under the 2014 and 2016 Costs Determinations, all work in relation to the originating summons was covered by Item 11. In my view, 'work up to and including judgment' includes the preparation of any witness statements or outlines, as well as discovery and inspection if these are required. For this reason, I do not consider that a separate allowance is payable to the plaintiff for these items.

12. In my view, it is appropriate that the maximum in Item 12(c) of Table B of the 2018 Costs Determination be lifted to reflect the work that was required to be done to prepare for a 4 day trial.  In my view, this item should be lifted to $81,510 on the basis of a 4 day hearing, 2 days' preparation for trial, 90 hours' preparation and the attendance of an instructing solicitor at trial for 6 hours a day.  I also consider that the maximum in Item 12(b) should be lifted to provide for the attendance at a second mediation.

13. Otherwise, I consider that the limits in Table B of the 2018 Costs Determination are appropriate for the work that was done.  To reflect that the proceedings were commenced in January 2016 and subject to the 2014 Costs Determination, I consider that the maximum allowance of $7,250 should be reduced by 5% to $6,900 to reflect the difference in hourly rates that applied at that time. 

14. In relation to the application for the interlocutory injunction, the records of the court reflect that this hearing went for approximately two hours.  I do not consider that the maximum amount should be allowed for this and would allow an amount of $7,500.

15. I have set out in the schedule to these reasons a table setting out the specific amounts that I have allowed for each item claimed by the plaintiff.  For these reasons, I consider that the plaintiff's costs should be fixed in the sum of $100,580.05 and paid by the defendants.

Defendants' costs

1. The defendants were the unsuccessful party and, in accordance with the policy of the Court set out in Dean v Collins, should bear their own costs.  If an order was made for their costs to be paid out of the sale of the Sorrento Property, it would have the effect of the plaintiff paying these costs.  In my view, this would not be a just outcome.

Conclusion

1. For the reasons set out above, it is my view that the appropriate costs orders are:

   (1)Pursuant to s 280(2) of the Legal Profession Act:

   (a)a limit of $5,000 be substituted for the limit of costs in Item 12(b) of Table B of the Legal Profession(Supreme and District Courts) (Contentious Business) Determination 2018 (WA); and

   (b)a limit of $81,510 be substituted for the limit of costs in Item 12(c) of Table B of the Legal Profession(Supreme and District Courts) (Contentious Business) Determination 2018 (WA).

   (2)The defendants pay the plaintiff's costs of the proceedings, including all reserved costs, fixed in the sum of $100,580.05.

Schedule

No	Detail	Item	Amount claimed[306]	Amount allowed	Reason
1	Work done prior to mediation	12(a)	$8,281.70	$6,900.00	5% discount to maximum to reflect rates in 2014 Costs Determination
2	First mediation conference	12(b)	$2,956.80	$2,956.80
3	Second mediation conference	12(b)	$1,713.25	$1,713.25
4	Work following mediation	12(c)	$92,652.70	$81,510.00	Allow 4 days’ hearing; 2 days' preparation; 90 hours' preparation; attendance at trial by instructing solicitor for 6 hours per day
5	Discovery	7	$2,021.25	$0.00	Included in item 12(c).
6	Inspection	8	$346.50	$0.00	Included in item 12(c).
7	Witness statements	$5,724.95	$0.00	Included in item 12(c).
8	Interlocutory application for injunction	11	$15,754.20	$7,500.00	Hearing went for 2 hours.
9	Informal discovery	7	$1,339.80	$0.00	Included in item 12(c).
Total			$130,791.15	$100,580.05

[306] The discount of 30% has been applied to each of the amounts in the table at p 4 - 5 of the Plaintiff’s submissions.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Research Orderly to the Honourable Justice Hill

16 JUNE 2020