Sharkey v Andrew

[2007] NSWSC 28

CITATION:	Sharkey v Andrew [2007] NSWSC 28
HEARING DATE(S):	12/03/07
JUDGMENT DATE :	12 March 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
EX TEMPORE JUDGMENT DATE:	12 March 2007
DECISION:	Paragraphs 71 and 72
CATCHWORDS:	Family Provision. Application under the Family Provision Act by a nephew of the deceased. Held plaintiff not a member of the household and therefore his claim fails.
PARTIES:	Michael Thomas Sharkey v Cyril Douglas Andrew (Estate of the late Mary Isabell Sharkey)
FILE NUMBER(S):	SC 4452 of 2005
COUNSEL:	Mr G McGrath for defendant
SOLICITORS:	G.R. Locke for defendant

- 1 -

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

MONDAY 12 MARCH 2007

4452/05 - MICHAEL THOMAS SHARKEY v CYRIL DOUGLAS ANDREW - EXECUTOR OF THE ESTATE OF THE LATE MARY ISABELL SHARKEY

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Mary Isabell Sharkey who died on 15 February 2004 aged 87 years. The deceased never married and had no children. The plaintiff is a nephew of the deceased.

The Will of the Deceased

2 The deceased's last Will was made on 3 October 1996 and in that Will she appointed her cousin, the defendant, as executor. After providing for payment of debts and expenses, the deceased gave her estate to her niece Colleen Rose Adams, her niece Anne Violet Gibbs, her nephew Geoffrey Vincent Sharkey and her great-nephew Christopher John Sharkey, in equal shares as tenants in common.

Estate of Deceased

3 The deceased's farm has been sold and the estate has been reduced to cash. The amount is presently $328,020.40. There are some minor administration expenses and taxation liabilities to be met and the defendant's costs to date in these proceedings are some $37,000.

4 The plaintiff does not have costs, he is self represented and has appeared for himself on the hearing today.

Family History

5 The deceased was born on 24 June 1916 and the plaintiff's sister, Anne Violet Gibbs, who is a niece of the deceased and a beneficiary under her Will, was born on 30 July 1942. The plaintiff's sister Colleen Rose Adams, also a niece of the deceased and a beneficiary under the Will, was born on 6 April 1944. The plaintiff himself was born on 30 March 1950. He is now 56 years old and is the fifth child of the 13 children in the marriage of their parents, Angus Bede Sharkey and Joyce Lillian Sharkey.

6 From 1950 until 1963 the plaintiff lived with his parents and various siblings on his parents' dairy farm at Missabotti near Bowraville, New South Wales.

7 On Monday 24 May 1954 the plaintiff's brother Geoffrey was also born. He is naturally a nephew of the deceased and is a beneficiary under her Will. In 1958 the deceased's mother died and she and her brother remained living with the father on the father's farm at Upper Missabotti.

8 At some stage during that year the deceased took over the running of her father's farm which was some five kilometres up the road and separate from the plaintiff's property. By the plaintiff's property I mean that of his parents in which they and the many children lived for many years.

9 The plaintiff was educated at the local school and between 1963 and 1965 he was sent away from home to St John's College at Woodlawn near Lismore. After finishing high school he worked for two years with his parents on their farm and then he gained other employment. He worked for the PMG at the Bowraville Post Office.

10 In May 1967 the plaintiff's nephew Christopher John Sharkey, who is now 39 years of age, was born. He is a great-nephew of the deceased and another beneficiary under the Will.

11 In 1968 the plaintiff moved to Post Offices at Grafton and Bellingen. His father died on 23 November 1968 and between 1970 and 1972 the plaintiff had a number of transfers to Sydney, suburban Sydney and Queanbeyan.

12 He met his wife Christine Cooper in Queanbeyan and they were married on 5 January 1974. They have two children, Pheona born on 30 May 1974 and Darren in 1975. At that stage the plaintiff transferred from Queanbeyan to Singleton.

13 The plaintiff separated from his former wife in 1980 and their marriage was dissolved in 1981. At that stage the plaintiff was living in Gosford. In 1981 the plaintiff's mother sold her farm at Missabotti and went to live in Gosford with the plaintiff to help care for his son until the plaintiff's wife was awarded custody.

14 It is in this time from 1981 to 1983 that the plaintiff says that he lived with the deceased, his Aunt Mary as he referred to her, on her farm at Missabotti. I will come back to the detail of that in due course.

15 In early 1983 the plaintiff moved back to Sydney and worked with his sister before moving to Canberra and then back to Sydney. In 1986 the plaintiff formed a relationship with a friend Dario.

16 In 1987 Christopher John Sharkey moved back up from the Maitland area to live with the deceased and work at the local sawmill. He and his wife lived there for about 10 or 12 months until 1989 and then moved back to Sydney. At some stage in that time when he was there Christopher converted the dairy into a home for himself and his two children.

17 Geoffrey Sharkey moved back to live with the deceased on her farm between 1998 and 1999. They then bought a property about two kilometres away from the deceased's farm and moved there to live.

18 In the meantime Christopher bought a home at Nambucca Heads and occasionally visited the deceased at weekends until she moved into a retirement Lodge in 2003. In that year she spent some time in hospital before moving to the Lodge. By 2004 she was suffering from dementia, heart disease and other medical problems until she died on 15 February 2004.

19 It was on 2 October 2003 the plaintiff and his friend Pedro Carcharias travelled to Missabotti and there they met John Turner, one of the neighbours of the deceased, in circumstances to which I will return.

20 In December 2003 the plaintiff applied for a Guardianship order in respect of the deceased but that application was unsuccessful.

21 The Grant of Probate was obtained after the death of the deceased and these proceedings were commenced within time.

Eligibility

22 The plaintiff is a nephew of the deceased. He claims to be an eligible person within paragraph (d) of that expression in the Act, as he says that: (a) firstly, as a child (from 1958 to 1963) he spent time overnight on weekends or school holidays on his grandfather's farm and was thus a member of the household; and (b) secondly, says that later on from 1981 to early 1983 he lived on the deceased's farm with her. He also says that he was partly financially dependent upon her from time to time.

23 I will first deal with whether he was part of the household of the deceased. He gave evidence that from 1958 he attended St Mary's Catholic School in Bowraville and lived with his parents. However, he says he spent weekends and school holidays at Aunt Mary's place, the deceased’s, whose farm was about five kilometres up the road from his parents’ farm. He says that during that time she paid him pocket money of two shillings a week.

24 Evidence was given by Geoffrey in these terms in his affidavit:

“When we were children, I and my brothers and sisters all spent time, from time to time at the home of our grandparents and our uncles and aunts.
When I was a child living at home my whole family regularly visited my father's parents’ home for Sunday dinner. In addition, each of us children also went for short visits to stay at our grandparents’ home at other times. On some occasions two of us children would visit at a time. I recall going on visits to my grandparents’ home with the plaintiff. These visits were generally just overnight stays. In school holidays, however, we sometimes spent extra nights there.
As a child the plaintiff did not stay at my grandparents’ home or at Aunty Mary's home any more often or for longer periods than me or my brothers and sisters. My mother would not allow us to stay every weekend or for the whole of the school holidays".

25 Plainly, on his evidence, the plaintiff did spend some time with his Aunt during holidays. Geoffrey seemed to be a careful witness, however, he was four years younger than the plaintiff. He was still old enough to be able to recall his staying there during the holidays and this is important because the plaintiff was quite clear in his affidavit that no one else was living at the farm at the time he was there.

26 There was also evidence given by Anne Violet Gibbs, she was another niece of the deceased and one of the beneficiaries. She was born on 30 July 1942, was the second child in the plaintiff's family of 13 brothers and sisters. She also had a close relationship with Aunt Mary until her aunt died. Her aunt was in fact a bridesmaid at her wedding and godmother to her first child.

27 She was referred to the plaintiff's claim that he went and stayed alone at his Aunty's place. She says that, for instance, her sister Colleen went and stayed there for some 18 months when she went to school at one stage. She also says that that was the only one of her brothers and sisters who stayed there for any lengthy period of time.

28 Given her age, she would certainly have recollected if the plaintiff had stayed there for some time, perhaps in the holidays. She referred to this in more detail regarding holidays and said that after the grandmother and Uncle John died in 1958 the children all took turns in going to visit Aunty Mary to stay with her and comfort her. She says that Michael was not the only one nor was he the main one to stay with Aunty Mary at that time.

29 She also referred to the fact that Aunty Mary helped in the taking of children to hospital, not just for the plaintiff but also for everyone else.

30 Having regard to the fact that there is evidence from two children and particularly an older sister of the plaintiff who is likely to recall, I think the situation is that the plaintiff has exaggerated the extent of his stays when he says that he stayed every weekend and all the school holidays. The fact that he was prepared to deny that anyone else went there clearly indicates some exaggeration in this respect.

31 It is necessary for the plaintiff to establish that he is part of the deceased’s household. There was an extensive discussion of the meaning of "household" in Kingsland v MacIndoe [1989] VR 273. It seems clear that the word in its ordinary sense is as set out in the Oxford dictionary:

“The ‘holding’ or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organized family, including servants or attendants, dwelling in a house; a domestic establishment”.

32 His Honour Mr Justice McLelland in Munro v Lake (unreported, NSWSC, 8 February 1991) dealt with the situation where a stepdaughter and her mother stayed with the deceased each weekend for several years. In that case he held that the plaintiff was not a member of the household as he found that there was no continuity and permanency of mutual living arrangements.

33 In Mankulin v Drew (unreported, NSWSC 12 August 1993) Young J dealt with the matter at some length. He said:

“In Benny v Jones supra, I said that the question of what is a household in this legislation was awkward. I then reviewed a series of cases in Canada and North America dealing with exceptions to insurance policies whereby damage to member; of the insured's household are not covered. As I mentioned in Benny v Jones the cases have taken the view that one cannot have a household of one, a household involves the existence of a householder and that a household consists of the members who live in the domestic establishment including servants and attendants. The word is wider than family. In Wawanesa Mutual Insurance Co v Bell (1957) 8 DLR (2d) 577, 580, Rand J in the Supreme Court of Canada noted the difference between people who were in the household and those who were of a household. He said "The circle of those 'in' is larger than those 'of', a good example of which is furnished by the case of Home Insurance Co v Pettit 143 So 839 (1932). There the exception was of theft by a person 'in' the household of the insured and an uncle, temporarily a guest of the insured's father was held to be of that description." See also Calverley v Gore District Mutual Fire Insurance Co (1959) 18 DLR (2d) 598, 606, where a live in farmhand was held to be a person in the household but not of the household. In that case Schroeder JA in the Ontario Court of Appeal said that a person "'in the household' can more easily disengage himself from that relationship or association than a person who falls within the more intimate category ...". It is to be noted that in the instant statute the words are "of the household".In Kingsland v McIndoe [1989] VR 273, Gobbo J had to look at the words "member of the household" under the Victorian Crimes (Family Violence) Act. His Honour considered under that Act persons whose sole relationship was that of sharing a house did not qualify as members of a household. He did, however, thoroughly discuss the English, Australian and Canadian authorities on the meaning of the word "household".

In the Court of Appeal in Benny v Jones it would not appear that any of the authorities which I considered in my judgment or those which Gobbo J considered in Kingsland's case were referred to the Court. Priestley JA, however, did deal with the question of what is a household in (1991) 23 NSWLR at 564. From the report it would not appear that any of the decisions referred to in my judgment on the question of household were referred to the Court of Appeal or that they looked at them. Priestley JA merely said: "I do not see there is any meaning of the phrase 'a member of a household of which another person was a member', which would not encompass the way in which the plaintiff lived in the same house as his friend for three and a half years."Although Priestley JA has given the leading judgment in the majority of the cases on this Act that have gone to the Court of Appeal and anything that falls from his Honour is of tremendous value whether obiter dicta or otherwise, I think it would be inappropriate to put too much weight on this dictum if it is out of line with other judicial pronouncements on the concept of household. Needham J in Moloney v Goodwin - 1 August 1989, was clearly of the view that before one could have a household one had to have a quasi family unit. Whilst a mere boarder would not be "of the household" a boarder who supported the deceased like a brother or son might have done, did qualify. In the instant case Mr and Mrs Markulin and their daughters on any description of the word "household" constituted a family unit. There is no doubt that Mrs Markulin was a member if not a co head of that family and household. The problem is whether, on the evidence, the deceased was a member of that household, at least between 1982 and 1985.
In Munro v Lake - 8 February 1991, unreported, McLelland J considered whether a stepdaughter who had regularly visited the deceased's home and stayed from Friday to Sunday night with her mother, the deceased's wife, was a member of the deceased's household. His Honour, after referring to my decision in Benny v Jones and Kingsland v McIndoe [1989] VR 273 said: "The concept of membership of a household ... connotes a degree of continuity and permanency of mutual living arrangements ...". He considered that apparent regularity of weekend visits would not be sufficient to make a person a member of a household.In Wagstaff v Wagstaff a decision which Windeyer J gave when a Master on 6 November 1991, his Honour had to deal with situation where the applicant, Nancy, was a former workmate of the deceased who had borne him a child. The deceased was still living with his legal wife at the relevant time. However, for some time the deceased would visit Nancy twice each day during the week for breakfast and in the evening and would also see his child. He also visited every Saturday and Sunday, but only on one occasion did Nancy, the deceased and the child go away together for a weekend. Nancy gave evidence that on his visits the deceased would change out of his suit into casual clothes, play with his daughter and then change back into his suit to go home.
Windeyer J said that there was no doubt at all that the principal household of the deceased was with his wife, but then said: "The question is whether or not he was also a member of the household of [Nancy] ... I accept that it may be possible in special circumstances to be a member of more than one household at the same time. Mr Green probably managed that; see Green v Green (1989) 17 NSWLR 343. But the ordinary meaning of being a member of a household requires the member to live in that household. A child living at home with the family is a member of both family and household but upon moving out to live elsewhere remains a member of the family but not of the household. Regular visiting, when this is not accompanied by regular overnight stay, is not sufficient. ... It follows that the plaintiff is not an eligible person and her claim should be dismissed with costs."Windeyer J's statement that it is possible to be a member of two households must, in my view, be completely correct. It is not at all uncommon in this day and age that a child of a broken marriage will stay with his or her father from Friday night to Monday morning because the mother works weekends, and will live with his or her mother from Monday through to Friday because the father works weekdays. The child may very well have clothes and toys and books at both the mother's home and the father's home. The child would clearly be in two households. Likewise the Mr Green to whom Mr Justice Windeyer referred who had a legal wife and two de facto wives whom he kept in ignorance of each other's existence and managed to spend roughly two days a week with each, may well have been involved in three households in all of which he may have been the householder. Accordingly, I accept that it is possible for Mr Ackerman to have been a member of the Markulin household ever though he may also have been a member of the Legge household or he was a member of a household involving his suite at the Airport Hilton Hotel. If, however, the American cases are correct that it needs more than one person to constitute a household, there was no household involved with the deceased's suite at the Airport Hilton Hotel. It is not necessary to go into that matter further.
The only other decision that I think I need refer to is the decision of the Court of Appeal in Light v Anderson (1992) DFC 95 to 120. I have already set out its facts. The Court of Appeal never appeared to consider whether the plaintiff was a member of the household, presumably it was common ground that such a housekeeper was a member of the household. If she were not a member of the household it is hard to see how the Court could possibly have made an order. It seems to me that what is to be learnt from the cases, particularly the Court of Appeal decisions in Benny v Jones and Light v Anderson is that one can be a member of a household for the purpose of the Family Provisions Act provided that there is in fact a household and that the plaintiff has some intimate connection with the householder or another member of the household even though the plaintiff does not fall into the category of a quasi wife or quasi child. Thus, a fellow bird watcher who lived in the house and shared expenses with the deceased was a member of the same household as was a live in housekeeper who was paid a moderate wage, went away on trips with the deceased and had sex with him on more than a casual basis could be a member of the household even though she was in no way a de facto wife. It was important that she was not a mere housekeeper or employee either. When I use the words "intimate connection" I do not limit that to persons with whom there is a sexual relationship. The bond between them, however, must be quasi familial or that of friendship rather than that of landlord and boarder or master and servant. However, there is nothing to stop a person who enters a house as a servant ending up as an intimate friend.”

34 Although the plaintiff gave some evidence of care that the deceased extended to him when he was ill, I am not satisfied that there were two households in the sense referred to in the cases. Accordingly, I do not think that the plaintiff was part of the household at that time.

35 The second period was between 1981 and early 1983 which was described by the deceased in his affidavit evidence as follows:

“On a Sunday afternoon in July 1981 when I was at Aunt Mary's, whilst we were walking back to the house Aunt Mary said to me words to the following effect:
‘Michael, would you like to take the farm over? I am getting on in age. Uncle Alex and I would be very happy for you to take over the farm because you are my favourite boy and I know that you will always look after the farm, keep it in the Sharkey family and not allow it to be destroyed. You know how your grandfather treasured the farm. I want to transfer it to you. The other members of the family can't work it and they are only interested in what they can get when I pass on’.
I replied with words to the following effect:
‘I would be happy to work the farm and take it over and you know that I will respect your wishes. As you know I am still going through the divorce and the money I loaned David has not been paid back’.

Mary said words to the following effect:

‘I am very happy for you to take this on and as soon as you can sort out all your problems I will transfer the farm over to you’.

In 1981 I went to live with Aunt Mary on her farm. The work program on the farm was a full-time job. I arose at 5 a.m. to milk the cows, which was washing their teats and placing milk cups on each teat, when all the cows were milked then there would be the cleaning of the bails by hosing out any mess the cows made, washing all the instruments and scrubbing the separator room and three times a week taking the cream to the pick up point for the truck. Then I would have to clean up the droppings of the cows in the holding yards. When this was finished I would then feed the pigs and carry the milk and corn to each of the pig pens. The work on the farm was heavy work. I was also mowing with the tractor, planting feed and harvesting the corn as well as brushing the hills and paddocks with a brush hook and cooking and cleaning the house and doing the washing. I went to bed at about 8.30 p.m.”

36 If the facts were as deposed to by the plaintiff then plainly he would be part of the household. However, there is a deal of evidence to the contrary. I turn, firstly, to the evidence given by Elizabeth Weir Sharkey. She is the wife of David Patrick Sharkey from whom she is now separated.

37 Her husband is the brother of the plaintiff and also a nephew of the deceased. The witness had known the plaintiff since 1978 when she first met him. She was married to David in 1981 and they holidayed in the Aukaka Caravan Park at Nambucca Heads in December of that year.

38 She recalls that by that time the plaintiff had separated from his wife Christine and was living in the caravan park. She also recalls that her mother and David's mother "joined us for that holiday" and stayed with the plaintiff in his caravan.

39 In January 1982 she says at the end of the holiday her husband found a business for sale in Nambucca Heads. They extended the holiday and purchased the business. She was working in Sydney as a secretary and they had a home at Campbelltown. Her husband David owned a truck and was a sub-contractor driving for TNT. After completing the purchase of that business at the end of their holiday they returned to Campbelltown and at that stage the plaintiff was still living at the Aukaka Caravan Park. She says a few weeks later he moved to the Pacific Sands Caravan Park.

40 After going back they received some calls suggesting they should return to see what the plaintiff was doing in managing the business or caring for it. They returned there, according to her, at Easter 1982. She bought a mobile home and lived at the Aukaka Caravan Park and she then took over the running of the business. There were difficulties because it was not going well and the details of that which led to some dispute between her, her husband and the plaintiff but the substance of the dispute is not of great moment for the purpose of this case.

41 She says importantly that when she returned to Nambucca Heads in 1982, at Easter, the plaintiff was still living at the Pacific Sands Caravan Park. She says that he still lived there until Christmas 1982 when he moved back to the Sydney area. They lived there for the next two to three months and she says they continued to have contact with the plaintiff. Action did not proceed against him at the request of her husband. She says by about Christmas 1982 the plaintiff had moved back to Sydney. He in fact puts it at early 1983.

42 It is important to realise that in this evidence there are a number of facts which helped the witness to fix when matters occurred. There was in paragraph 4 a reference to her marriage in November 1981. That is very likely to be something which this witness would remember. It is the plaintiff who says that it was in early 1981 that these events occurred when she came there.

43 The other matter which might have helped this witness fix it no doubt is the fact she can recall they came back there at Easter 1982. This is also at odds with what the plaintiff would suggest to the court as to when this happened.

44 These matters give a reason for treating the evidence of this witness as somewhat more reliable and more accurate.

45 There was also evidence given by Christopher. Christopher was born in 1967 and he would thus have been 14 at the time when the plaintiff says he first came back up to Nambucca Heads and then went to live with the deceased.

46 Christopher's recollection is that in mid 1982 he left high school part way through the year and left his home at Killara and moved to Nambucca Heads. He went to live with the plaintiff and his brother Tony Sharkey on a property near Nambucca Heads. His uncle was a dairy farmer on the property and was a share farmer. David also worked there. At that stage after he was working there David and his wife Elizabeth, to whom I referred, suggested that he should go back to school and finish year 10. As a result of that he says he did enrol in year 10 and did so at the beginning of the third term.

47 This is consistent with him probably having come up there in the middle of the year. He initially resided in the caravan with the plaintiff. He says that there was some untoward advances by the plaintiff, which are denied by the plaintiff. However, plainly immediately after staying there awhile he left the plaintiff’s caravan and went elsewhere. He then continued his School Certificate and lived with his Uncle David and his wife Elizabeth.

48 He in this period refers to having visited Aunty Mary on a weekend two or three times a month. They would have lunch with her and he says during this period the plaintiff still lived at the Pacific Sands Caravan Park. He says that he did not see the plaintiff at Aunty Mary’s on any of the occasions when he visited her with Uncle David and his wife. He says he remained there with them until June 1983 when he moved back to help his father.

49 This witness, although only 14 or 15 at the time, at least has events which enable him to place what he could observe and those events were him going back to finish year 10 at the beginning of third term and that year 10 was then in mid 1982.

50 There were also other things, other evidence that was given by others which also should be referred to. One of these was Mr John Turner who was a neighbour of the deceased. He had a property on the western boundary of the farm and they bought that property in 1977. He says they had a good neighbourly relationship with Miss Sharkey, was in contact on a regular basis, they helped each other with fencing repairs particularly after flood damage, collection of cream from the dairy which was delivered to a place down the road and occasionally he helped with some cattle work on the property. He moved waste milk from her dairy to feed their pigs and occasionally provided transport to the deceased’s brother. They spent Christmas and New Year’s dinner with the deceased up until the time when Geoffrey came to live there in about 2000. So, he says in none of that time did Miss Sharkey mention the plaintiff nor did he observe him on that property when he was living on the farm. He claims he did not meet him until October 2003.

51 He also refers to the fact that although there was a tractor kept on the farm most of the tractor work that he observed was carried out by a contractor, Max Ballard. He certainly did not see the plaintiff, as the plaintiff claims he did, operating a tractor on the property over a period of some two years. He says that the tractor just simply was not used until Chris Sharkey moved in to live in the Old Dairy a long time after the events in question in 1981 and 1983.

52 His reference to meeting the plaintiff was when they were doing some fencing work and they were approached by two men who turned out to be the plaintiff and his friend Pedro. They were there at the property on this occasion and he was adamant in his affidavit that was the first time that he met the plaintiff.

53 The plaintiff says that he met him before when he came up to the house to make telephone calls. But it would be surprising if that was the only contact, given the extent of the relationship between that neighbour and the deceased, that he would not have seen the plaintiff doing the things he was describing between 1981 and 1983.

54 Both Geoffrey Sharkey and Colleen Adams gave evidence of their relationship with the deceased, in particular they gave evidence of having talked to the deceased by phone in the relevant years between 1981 and 1983. They conceded that they were not there in those years but the deceased certainly did not mention to them anything about the plaintiff living there.

55 None of these witnesses, apart from the last two, were cross-examined by the plaintiff and I do not have the benefit of their cross-examination. However, the plaintiff has filed affidavits in reply in which he agrees with their evidence.

56 The plaintiff himself was cross-examined and it was suggested to him that his evidence was a fabrication. The problem for the plaintiff is that this evidence given by others is quite detailed. The witnesses have good reason for remembering the particular times when they might have been there and that lends credence to their evidence. I find it surprising that the plaintiff has not called any other evidence, either from other neighbours or other relatives or friends, who might have been able to support his story.

57 Having regard to the whole of the evidence I am satisfied that he did not reside as he alleged with the deceased from 1981 to 1983.

Dependency

58 In Ball v Newey (1988) 13 NSWLR 489 the Court of Appeal first considered the question of dependency. His Honour Mr Justice Samuels at page 490 said the following:

“His Honour concluded that ‘dependent’ meant financially dependent, a proposition which has not been challenged in the appeal. It may be that there are other forms of dependence analogous to but distinct from financial dependence which would be capable of satisfying the requirements of section 6(1) the definition of ‘eligible person’, par (d)(i).
In the present case, however, only financial dependence is relied on and I approach the matter on that basis. ‘Dependent’, in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed. In determining whether that relationship exists, it is relevant to bear in mind what was said by Sankey LJ in Lee v Munro (1928) LJKB 49 at 53; 21 BWCC 401 at 408, that in ‘deciding whether or not there is dependency of the factors to be considered are past events and future probabilities’. While it is true that here we are concerned with financial dependence and not emotional dependence, the whole relationship between the appellant and the deceased must be examined in the light of that statement in order to exclude situations which might present the simulacrum but not the substance of dependency.”

59 His Honour analysed the facts in the case and particularly referred to the fact that the parties had jointly decided to pool their income for the purpose of purchasing property together.

60 In Benney v Jones (1991) 23 NSWLR 559 the Court of Appeal returned to the issue in a case where the only dependency was emotional resulting from a homosexual relationship between a party and the deceased. The court rejected a submission that dependency may be based solely on the existence of an emotional relationship between them.

61 In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 the court once again considered the meaning of dependency. At page 346 the Court had the following to say:

“I would respectfully agree with the Master in both respects. The word ‘ dependent’ is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things.
But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language.
This accords with what Samuels JA said in Ball v Newey (1988) 13 NSWLR 489 at 491. that ‘dependent’ in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed.
If the correct view were that the context of the statute requires a limitation of the word to ‘financial or material’ matters as McClelland J said in Re Fulop Deceased or to ‘other forms of dependence analogous to but distinct from financial dependence’ as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them.
To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does.
The same considerations apply to a stepchild or his or her stepmother when the child lives with the stepmother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.”

62 In McKenzie v Baddeley (NSWSC unreported, 3 December 1991), his Honour Mr Justice Meagher, although in the minority, further discussed dependency and described it as “financial, economic or material dependency, not a mere emotional dependency”. Important in that case the majority held that the word “partly” in the phrase “partly dependent” does not mean “substantially” but meant “more than minimally” or perhaps “significantly”.

63 In Williams v Legg (1993) 29 NSWLR 687 the court in considering a case of a young child needing mothering pointed out that the absence of financial dependence is not conclusive.

64 The evidence is unclear as to how long the grandparents’ home, which ultimately was acquired by the deceased, was owned by them. In these circumstances I would not be satisfied that the provision of accommodation on weekends or from time to time during the holidays made him dependent upon the deceased.

65 The plaintiff says that in the early 1970s the deceased lent him $1000 and that she bought him a caravan for $1000 in about 1975. The plaintiff also says that when he visited her in 1988 she gave him a cheque for $1000. In 1996 he says she again send him a cheque for $1000. In the context of the plaintiff's lifestyle at the time these probably were significant matters and showed some dependency.

66 If I had accepted the plaintiff's version that he lived with the deceased from 1981 to 1983 then plainly there would have been dependency as a result of the provision of accommodation by the deceased.

67 In the circumstances where I have found that the plaintiff was not part of the household of the deceased, his claim must fail.

68 I mention that the only mention by the plaintiff of how he has been left without adequate and proper provision for his maintenance education and advancement in life is to supplement his parlous financial state. He suffers from HIV and has a disability pension of $953 a month which is consumed by his expenses. His assets and personal effects, furniture and electrical equipment are worth about $600.

69 If I had found that he was entitled to make a claim then no doubt I would have had to have considered that situation along with the financial situation of the other beneficiaries who have put their financial situation forward for consideration by the court. However, in the circumstances of my finding that he is not entitled to apply, I do not proceed further with that exercise.

70 It is unfortunate for the plaintiff but unless the plaintiff can establish that he is an eligible person the Court does not have power to make an order in his favour. Just because he is in difficult financial circumstances, and it is unfortunate that the deceased did not leave him something as plainly he did have contact during his life, the court is not in a position to make an order.

71 Accordingly, the orders that I make are that the summons be dismissed. In the circumstances I think that the plaintiff should pay the defendant's costs but in his current circumstances he is unlikely to. I do not think they should be on an indemnity basis. The plaintiff had reason for making his claim but it was unsuccessful.

72 Accordingly, the order I make is that the plaintiff pay the defendant's costs on the ordinary basis.

oOo