Smoje v Forrester

[2017] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smoje v Forrester [2017] NSWCA 308

Hearing dates:

24 August 2017

Date of orders:

04 December 2017

Decision date:

04 December 2017

Before:

Basten JA at [1];
Macfarlan JA at [2];
Meagher JA at [3]

Decision:

1. Appeal allowed.
2. Set aside orders 1, 2, 3 and 4 made on 30 May 2017 and in place thereof:
(a) dismiss the plaintiff’s summons;
(b) the defendant’s costs of the proceedings be paid out of the estate of the deceased (Miryana Smoje) on the indemnity basis.
3. Appellant’s costs of the appeal be paid out of the deceased’s estate on the indemnity basis.
4. The amount of $750,000 paid into court by the defendant be paid to the defendant’s solicitors or, if security was provided in lieu of that payment, that such security be delivered up to the defendant’s solicitors.

Catchwords:

SUCCESSION – family provision and maintenance – where deceased terminally ill and living in a hotel room – where respondent visited the deceased to provide her with care in the months preceding her death occasionally staying overnight – whether respondent and deceased were “living together” in a “close personal relationship” at the time of her death

  EVIDENCE – expert evidence – where primary judge made findings as to mental disability suffered by respondent – where no expert evidence as to existence of any such disability and how it might affect respondent’s behaviour or evidence – whether findings, including as to credibility, available

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 59

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Category:

Principal judgment

Parties:

Neven Smoje (Appellant)
David Forrester (Respondent)

Representation:

Counsel:

 

M Painter SC and R Bianchi (Appellant)
I Coleman SC and L Clarke (Respondent)

 

Solicitors:

  Wills & Estates Legal Service (Appellant)
Turner Freeman (Respondent)

File Number(s):

2017/191999

Publication restriction:

None.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2017] NSWSC 482

Date of Decision:

4 May 2017

Before:

Lindsay J

File Number(s):

2015/00291238

Headnote

[This headnote is not to be read as part of the judgment]

In the months preceding her death, the deceased was living in a hotel room. She was terminally ill. The respondent, whilst residing in other accommodation, would visit her to provide care and support and occasionally spend the night sleeping on her floor. The primary judge (Lindsay J) found that the respondent was in a “close personal relationship” and “living together” with the deceased at the time of her death, and therefore eligible to make an application for provision out of the deceased’s estate. In doing so, his Honour viewed the respondent’s evidence in light of his asserted mental illness, which was not the subject of expert evidence. His Honour made an order under Succession Act, s 59 for a lump-sum payment to the respondent of $550,000.

Held (Meagher JA, Basten and Macfarlan JJA agreeing), allowing the appeal:

i. Whilst “living together” does not require that the living occur at a single place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. The respondent’s repeated visits for a singular purpose, without more, do not satisfy that description: [39], [42].

ii. The uncontested evidence, and the respondent’s own evidence, was that he did not regard the hotel room as his home, and the evidence did not show that someone, other than the deceased, could have been living there, even if only for irregular periods: [36], [40].

iii. The trial judge was not in a position to make findings as to the respondent’s mental condition, and how it might explain aspects of his behaviour or evidence, in the absence of expert evidence. Such findings could not be used to assess the truthfulness of documents authored by the respondent, or to support the conclusion that evidence should not be regarded as truthfully recording his perception of matters dealt with: [48] – [55].

Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273, considered.

Judgment

1. BASTEN JA: I agree with Meagher JA.

2. MACFARLAN JA: I agree with Meagher JA.

MEAGHER JA:

Introduction

3. The respondent, David Forrester, sought and obtained an order pursuant to Succession Act 2006 (NSW), s 59 that provision be made for his maintenance and advancement in life out of the estate of Miryana Smoje (the deceased) who died on 6 October 2014. The primary judge (Lindsay J) held that the respondent, as a “person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death”, was a person eligible to make such an application (s 57(1)(f)), that there were factors which warranted the making of that application (s 59(1)(b)), that adequate provision had not been made (s 59(1)(c)) and that provision by way of a legacy payment ought be made in the sum of $550,000 (s 59(2)): Estate MPS, deceased [2017] NSWSC 482. The appellant appeals from that order, including on the ground that the primary judge erred in finding that the respondent and deceased were living in a “close personal relationship” at the time of her death. Although the names of the parties and deceased were anonymised in his Honour’s judgment, neither party invited this Court to make a non-publication order to that effect.

4. Section 59(1) confers jurisdiction on the court to make a family provision order in relation to the estate of a deceased person if the court is satisfied as to three matters. They are:

(a)    the person in whose favour the order is to be made is an eligible person, and

(b)    in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57--having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)    at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. [Emphasis in original]

5. Once that power is enlivened, the court may make “such order for provision … as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made” (s 59 (2)).

6. By s 57(1) the persons who are “eligible” to apply for such an order include:

…

(f)    a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

7. For these purposes, “close personal relationship” is defined in subsections 3(3) and (4):

(3)    For the purposes of this Act, a "close personal relationship" is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(4)    For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a)    for fee and reward, or

(b)    on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). [Emphasis in original]

The issues in the appeal

8. Grounds 1 – 4 concern the finding of eligibility under s 57(1)(f). The appellant contends the primary judge erred in finding that the respondent and deceased were “living together” at the time of her death (grounds 1 and 3). Whilst accepting that the respondent was providing the deceased with domestic support and personal care during the last six months of her life, the appellant submits that his Honour erred in not finding that those services were provided for “fee and reward” (grounds 2 and 4).

9. Ground 5 challenges the primary judge’s finding that the respondent suffered from a mental health disability. It is submitted that his Honour erred in making and acting on such a finding in the absence of expert medical evidence as to the respondent’s condition and how it might affect or explain aspects of his behaviour. His Honour relied on this finding when assessing the respondent’s credibility, and treated it as explaining evidence relied upon by the appellant. That evidence was said to show the respondent to be manipulative, prepared to lie and deceive to further his interests, and to have provided his services as the deceased’s carer for reward.

10. Ground 5 is also relevant to the resolution of grounds 2, 4 and 6 to 8 because the findings or evaluative conclusions to which those grounds are directed were based, at least in part, on the primary judge’s assessment of the reliability of the respondent’s testimony and the probative value of evidence of his conduct towards or concerning the deceased. In that respect, those grounds differ from grounds 1 and 3 which are pressed on the basis that the primary judge’s finding that the deceased and respondent were “living together” was not reasonably open, having regard to his evidence, which the his Honour accepted, and the uncontested evidence of the applicant’s witnesses, described as “necessarily to be taken into account”: Judgment [93], [106].

11. The primary judge also took this disability into account as a factor warranting the making of the family provision order (s 59(1)(b)): Judgment [113]. Ground 6 contends that his Honour erred in finding that there were factors which warranted the making of the order.

12. Grounds 7 and 8 challenge the primary judge’s findings that adequate provision was not made during the deceased’s lifetime and that provision should be made by payment of an amount sufficient to provide the respondent with further rental assistance and a fund to accommodate his ordinary living expenses and unexpected spending. In making that assessment, the primary judge again had regard to the respondent’s “disability”: Judgment [132]. Finally, by ground 9, the appellant contends that the primary judge failed to give adequate reasons explaining the amount of $550,000.

13. It is necessary at this point to outline the circumstances leading to the respondent’s claim. What follows focuses on the seven month period leading to the deceased’s death in October 2014, the time at which the primary judge found that she and the respondent were “living together” in her hotel room.

Background facts

14. The deceased’s parents were born in what later became Yugoslavia. They separately moved to Western Australia where they met and married. The deceased was born in April 1943. She had an older brother, Anthony, as well as a younger brother, Neven, who is the appellant. (Letters of administration of the deceased’s estate were granted to the appellant in February 2015). After the parents separated in 1962, the deceased’s mother and the three children moved to Manly Vale in Sydney. In late 1981, the appellant moved back to Perth, where he married. The deceased’s mother and other brother Anthony continued to live in Sydney. Her mother died in December 2001, and Anthony in June 2003. The deceased and the appellant shared equally the property and moneys available for distribution from the estates of their mother and brother. Using her share of the moneys distributed from those estates, the deceased purchased three home units in Balgowlah and invested moneys in a controlled money account. She also held a small parcel of shares. It was at about this time that the deceased, and her brother Neven, retained a solicitor, Ms Bellamy, who continued to act for the deceased until she died. At the time of the hearing of the appeal, the deceased’s estate was valued at approximately $2.25 million.

15. The deceased never married or had children and the evidence as to her life between the early 1970s and the beginning of 2012 is sparse. The man with whom she lived and had a long term relationship died in early 2012. Two years earlier she had been diagnosed with breast cancer, and, adopting the primary judge’s description, by that time was “terminally ill, expecting death, and commonly in pain”: Judgment [16]. The deceased died in October 2014 in a ground floor unit with a small bathroom at the rear at the Parkway Hotel, Frenchs Forest, at the age of 71. The direct cause of her death was a pulmonary thromboembolism. Her post-mortem report describes her as extremely thin. Large ulcers were noted on her mid-back and sacrum. She had a large malignant tumour of the right breast with metastatic lesions in her liver and lymph nodes. Her lungs were congested and showed evidence of chronic airways disease.

16. The deceased’s room contained two single beds with a reclining chair between them. One of the police officers who attended late on the evening of 6 October recorded that the “deceased was lying on her back fully stretched out in a hospital grade reclining chair. [She] was covered up to her chin by three blankets. In the room were two single beds either side of the deceased against each wall. There were numerous plastic bags containing mostly personal papers and mail, blankets and pillows on top of each of the beds…To the left of the deceased was a walking frame, a wooden brown table upon which was an empty juice drink bottle and straw and what appeared to be an unopened bottle of water. At the base of the bed to the left of the deceased was a white coloured plastic laundry basket containing a number of medications”.

17. A specialist physician (Associate Professor Chye), using the findings of the autopsy report as a basis, concluded that the “development of the large and open infected pressure areas strongly suggests that [the deceased] had not received any appropriate care in her chair and was not moved or had her position changed in the chair for long periods of time”. He also found that there was no indication that those areas were dressed or treated for infection or protected from further deterioration, and considered that the extent and severity of those pressure areas strongly suggested that the deceased had received “very little personal care over several weeks”.

18. Prior to taking up residence at the Parkway Hotel on 10 March 2014, the deceased, with two exceptions, had continuously been a patient in public or private hospitals from 25 December 2012, when she was admitted to Manly Hospital. There followed 14 admissions or transfers to public or private hospitals over the next 13 months. The two periods in which the deceased was not hospitalised were 10 days in January 2013 and between 8 February and 22 May 2013. During these times the deceased stayed at other hotels or, for a period, at the Narrabeen Caravan Park.

19. The respondent’s evidence was that he first met the deceased and her then partner in around 1979 at which time he claimed to have had a sexual relationship with her and her partner over a short period. (In a statement made to the police on the night of her death, the respondent claimed “that the deceased had been in his care from March 2014 and he had known her for 35 years. He said the mother of the deceased was friends with his mother-in-law”). From 1979 the respondent had a long term same-sex relationship with a man who died in November 2009. He did not see the deceased after 1979 until their chance meeting in August 2012. At that time, the deceased was living at the Manly Boutique Motel, and the respondent in rented premises in The Crescent, Manly.

20. The respondent was not working at that time and was in receipt of a disability support pension. At the end of 2012 the deceased was admitted to Manly Hospital. She gave as her usual residential address a unit in Pittwater Road Manly which, it would seem, was rental accommodation provided by Housing New South Wales. Her listed next of kin and emergency contact was given as the respondent, described as her “nephew”. In mid-September 2013, the respondent accepted a contract for temporary employment as a “Senior Business Analyst” with the New South Wales Police Force. That employment continued until mid to late April 2014 by which time the deceased (who had been discharged from Mount Wilga Hospital on 8 March 2014) had taken up residence in the Parkway Hotel. Shortly before the respondent’s temporary employment came to an end, his lease of the premises at The Crescent, Manly also was terminated; and about a month later the respondent commenced living in rented premises in Herbert Street, Manly. His evidence was that in the intervening period he “often slept on my own bed” in a storage facility in Brookvale to which his possessions had been moved when his lease of The Crescent property was terminated.

The cases of the parties and their evidence

The respondent’s case and evidence

21. At Judgment [51], the primary judge summarised the respondent’s case by reference to his counsel’s written submissions. In about August 2012 he and the deceased were claimed to have resumed a “close and intimate relationship” in which he “spent his days and part of his nights caring for her, at various locations” including the hotel in Frenchs Forest where she died. As her health and mobility declined, the deceased was said to be almost entirely dependent upon the respondent. It was submitted that at the time of her death they were “living together in a [hotel] unit at Frenchs Forest” which was her home; and that the respondent stayed there “though not continuously”. Each was said to provide the other with “domestic support and care”.

22. Whilst it was accepted that the deceased had provided the respondent with limited intermittent financial assistance, what each did for the other was explained as being in pursuit of “domestic” arrangements and not for “fee and reward”. It was submitted that the factors warranting the making of the respondent’s application included the respondent’s provision of kindness, companionship, care, and practical support; that the respondent enabled the deceased to stay in her own accommodation in circumstances where she had made it clear that she did not want to go into a nursing home; that the deceased’s estate was large, and there were no other persons with substantial competing claims on her bounty; and that the respondent was leading a marginalised lifestyle, associated with his disability, and was in extreme need of financial assistance, having no other resources.

23. The respondent swore four affidavits and gave short oral evidence. His first affidavit, dated 20 May 2016, contained a narrative of the facts in support of his claim. His second, sworn on 1 July 2016, was in response to the affidavits read in the appellant’s case. His third and fourth affidavits dealt with his financial position. The respondent’s cross-examination extended for more than one hearing day.

The appellant’s case and evidence

24. The primary judge extracted and paraphrased the appellant’s written submissions at Judgment [62]. The appellant’s case was that the respondent and deceased were never “living together”, and that payments made by the deceased to or for the respondent’s benefit during her lifetime were, at least as to part, in return for the domestic support and care he provided. It was said there were no factors warranting the making of a family provision order because the deceased had made payments to the respondent during her lifetime and that he “as an occasional carer and someone of whom [the deceased] was fearful” would not have been a natural object of her testamentary intention. It was also said that the respondent substantially abandoned the deceased towards the end of her life.

24. The witnesses whose affidavits were read in the appellant’s case included those of her solicitor Ms Bellamy, the manager of the Parkway Hotel, Mr Cauvin, the appellant, and Ms Mollatt, an aged care support worker who provided her services to the deceased for two hours a day (between about 11am and 1pm) from May to early September 2014. Of those witnesses, only Ms Mollatt’s evidence was contested by cross-examination, and then only in a limited respect concerning the first occasion on which she had met the respondent. According to her evidence that was at the Parkway Hotel in mid-to-late September 2014; and shortly after the deceased had asked her not to continue providing services.

25. The documents tendered in the appellant’s case included email communications between the respondent and Westpac containing statements concerning his role as the deceased’s carer; a September 2014 email from the respondent to the property manager of the Herbert Street premises concerning moneys the respondent expected to receive from the deceased for providing care, and two statements recording answers given by the respondent to police questioning on the night the deceased died. One of those statements attached the coroner’s report and the report of the specialist palliative care physician referred to earlier.

Whether the respondent was an eligible person (grounds 1- 4)

The “living together” finding (grounds 1 and 3)

27. The appellant’s first challenge is to the finding that during the period 10 March to 6 October 2014 the deceased and respondent were “living together” in her hotel unit.

28. The respondent accepts that in order for his relationship with the deceased to warrant the defined description “close personal relationship” it was necessary to have been “living together” at the time of her death; and that doing so involves some element of common occupation of a place, which need not be continuous. The evidence of the parties’ living arrangements during the relevant period was said to support such a conclusion. That evidence does not suggest, and it was not the respondent’s case, that they started “living together” before the deceased commenced her period of residence in public or private hospitals, and that they should be taken to have continued to do so notwithstanding that period of hospitalisation.

29. The primary judge’s findings on the “living together” and the “fee and reward” issues were:

[106]    I accept the Plaintiff’s evidence, accurately reflected in his counsel’s submissions, that, at the time of the deceased’s death, he was “living together” with her (each providing the other with “domestic support” and he providing her with “personal care”) within the meaning of section 3(3).

…

[108]    The “domestic support and personal care” provided by the plaintiff for the deceased was not “for fee and [or] reward” within the meaning of section 3(4)(a). Any payment of money made by the deceased to the plaintiff, and any expectation of the plaintiff that he might be paid money or otherwise benefit, was an incident of the parties’ relationship, not, in intendment or effect, a quid pro quo. Theirs was a domestic, not a business, arrangement. It was built upon a pre-existing friendship, renewed personal contact and shared grieving for lost partners. These were the dominant, causative factors in the provision of support and care, not the prospect or fact of monetary gain.

[109]    Although all the plaintiff’s comings and goings might not have been noticed by witnesses from whom the defendant obtained affidavits, and his limited personal contact with them might have been an alienating experience for them, I accept the evidence of the plaintiff that he generally spent part of each day with the plaintiff, or at her beck and call; that, from time to time, he slept at her place of abode and, at least in the early days of their relationship, she sometimes slept at his; and that, as best as he was able, he attended to her needs.

30. The finding at Judgment [106] engages the following elements of the respondent’s case as paraphrased at Judgment [51]:

[18]    [The plaintiff and the deceased] were living together in a [motel] unit at ….. Frenchs Forest at the time of her death. It was her home. He stayed there, though not continuously.

…

[20]    They were ‘living together’ at the [Frenchs Forest] motel unit at the time of her death on 6 October 2014, and had been living there continuously since 10 March 2014. It was [undoubtedly] [the deceased’s] residence. Although she owned three home units in Balgowlah [and other premises] she chose not to live in them.

Argument and decision

31. The appellant submits that it was not reasonably open to the primary judge to make a finding of “living together”. The respondent replies that the evidence in paragraphs 67 to 72 of his principal affidavit, which the primary judge accepted, was capable of supporting a finding of “living together”. Those paragraphs are:

67.    When Maryanne [the deceased] was released from Mt Wilga Private Rehabilitation Hospital, on 8 March 2014, I arranged for her to stay at the Parkway Hotel, Frenchs Forest. While I was working I only spent some overnights with Maryanne, as she did not appreciate being disturbed in the morning by my getting up and getting ready for work. It was a small room and there was no way to hide the noise or the light required for me to get ready in the morning. I continued to visit her every evening after work and late into the night. After I moved out of -- The Crescent, Manly due to the termination of the lease, I moved our possessions to Kennards Storage at Brookvale. I often slept on my own in the storage facility, because the beds at the Parkway Hotel were far too hard for me and uncomfortable, and as stated above, Maryanne did not appreciate being woken up in the morning by my getting ready for work.

68.    Our sexual relationship continued, although due to Maryanne’s deteriorating physical condition we were no longer able to have intercourse. My sleeping in another bed overnight did not affect our relationship, or our closeness. I often fell asleep on the floor of our room, holding onto her legs for comfort.

69.    The property at -- Herbert Street became available after about one month after moving out of -- The Crescent, Manly. The house at Herbert Street, although it was a single level property, had approximately 6 stairs in the front yard. For this reason I purchased an Evac Chair to allow Maryanne to get up and down the stairs, with my assistance, so she could enjoy being in the garden. I also bought a ramp to allow her to get in and out of the front door (with her walking frame) which had two small steps. All of these decisions were made with Maryanne’s full consultation.

70.    My temporary employment ended in April 2014. After which I returned to spending my time with Maryanne, attending her needs, preparing her meals and taking her on outings. I also attended to setting up the house so it would be suitable for her to move in to, including arranging all of our possessions.

71.    We later decided that Maryanne would wait until summer to move into the house as it turned out to be quite cold inside, and she hated being cold.

72.    Maryanne continued to stay at the Parkway Hotel, where I would spend all of my days with her, right up until her death. I continued to pay for our accommodation at the Parkway, and Herbert Street for as long as I was financially able, and she took over paying the accommodation costs when my money ran out.

32. Paragraphs 67, 68 and 69 are directed to the period from when the deceased commenced living in the Parkway Hotel until late April 2014 when the respondent’s temporary employment came to an end. During that period the respondent says he “only spent some overnights” with the deceased, and presumably in her hotel room. The later reference in paragraph 68 to “sleeping in another bed overnight” is reasonably understood as the respondent’s sleeping in the “storage facility”, whereas the reference to falling asleep on the floor “of our room” would appear to be to the floor of the hotel room, and is consistent with the earlier evidence that the respondent sometimes stayed there overnight. The remaining paragraphs address the period after April 2014. They do not say in terms or implicitly that he stayed overnight in that room on any occasion.

33. In oral argument, as evidence supporting the primary judge’s finding, the respondent referred also to paragraphs 18, 20 and 21 of his second affidavit. Those paragraphs concern the period May to September 2014. They include that “[the deceased] never rang me during the night” for pain management “obviously wanting me to sleep for the next day together” (paragraph 18); that “I always put her on the toilet last thing before I left in the early hours of the morning” and was “in the habit of coming straight to [the deceased] after getting up” (paragraph 20); and that in the morning “I used to leave when [Ms Mollatt] was to come, went home, showered, had my apple, carrot and celery juice and proceeded to Manly Wine Bar where I bought take away [waiting for the deceased’s call]” (paragraph 21).

34. This evidence describes the respondent providing care and support to the deceased but not that they were “living together” in her hotel room. The respondent did not regard that room as his “home”. He acknowledges, after he had visited and provided care to the deceased in the morning, he returned to his “home”, showered and had breakfast. None of this evidence suggests the respondent kept clothing or any other possessions in the deceased’s room, or that it was a place where he undertook any activity other than providing care.

35. The uncontested testimony of the appellant’s witnesses as to the physical appearance and contents of that room during this period suggested that he was not living there, and that there was no real possibility that someone other than the deceased could have done so. The primary judge considered their evidence to be “plausible”, and described the deceased’s living conditions as being, “to a sane person of ordinary sensibilities, plainly unpleasant, and increasingly so”: Judgment [93].

36. In May 2014, the deceased’s brother, Neven, and his wife visited the deceased in the Parkway Hotel. In his unchallenged evidence, he described her as “looking gravely ill and … just skin and bone. She could hardly lift her arms.” As to her room, he said:

31.    From my observation of Miryana’s room at the Parkway Motel, she lived there alone. Whilst I was there Miryana was sitting up in a reclining chair which she told me she also used to sleep in. The room was very cluttered with bags piled on top of the bed in the room as well as on the floor. My wife and son who came with me had to stand as there was no room for them to sit down. Miryana’s bags took up most of the space in the room. I saw no evidence of another person being able to stay in the room.

37. Ms Bellamy’s uncontested evidence was that she visited the deceased on a number of occasions. She described the room:

31.    In the Parkway Hotel room Mirjana had set herself up in a recliner chair between the two beds in the room. The beds were covered in bags and towels and other belongings. She had one and maybe two small tables on either side of the chair. I recall that Mirjana kept her important papers and envelopes containing her cash in a plastic coated toiletries bag. This was always within her reach. On the table on her left I saw that she always had medicines and dressings. I saw no evidence that there was any other person living with her or sleeping in the room.

38. Thirdly, Mr Cauvin’s affidavit described the deceased’s room on the first occasion that he met her “some weeks, perhaps even months” after she became a resident of the hotel:

13.    The room had in it a queen bed and a single bed. Marianne was sitting in a chair that had been placed between the two beds. It looked as though she had been in the chair for some time. Both the beds were strewn with her belongings such as blankets, some clothes, medication and her handbag. I noticed that she knew exactly where the purse was and had no difficulty in extracting the money from the purse.

39. These observations made at various times in the period from March to October, when considered with that of the police officer on the night the deceased died (see [16] above) show that no one was sleeping, or could have slept, on either of the beds in the room, and that there was no sign that anyone was doing so. Further, none of this evidence supported a finding that someone other than the deceased was using, or could have used, the room as a place at and from which they conducted their daily or nightly routine of living, as one might if sharing a common residence, even if only for irregular periods. The respondent’s evidence did not suggest otherwise. At its highest, that evidence was that in the course of providing care and support to the deceased, the respondent occasionally stayed overnight when he fell asleep on the floor. However, at the time the deceased died the respondent’s daily routine included his living in the Herbert Street property which he regarded as “home”. This evidence did not support the primary judge’s finding of “living together”.

40. The remaining evidence relevant to this question, which was not referred to by the primary judge, is in the statement of Constable Humphryis, who questioned the respondent on the night of the deceased’s death. That statement contains the following acknowledgement by the respondent:

12.    FORRESTER stated that the deceased had been in his care from March 2014 and he had known her for 35 years. He said the mother of the deceased was friends with his mother-in-law. He said he would check on the deceased daily, bringing food, drink and checking her welfare. He also stated that he did not live with the deceased but would sometimes sleep on the floor when caring for her. [Emphasis added]

41. There is, in the primary judge’s conclusions at Judgment [106] and [109], little consideration of whether the fact that the respondent was generally spending part of each day with the deceased, providing support and care, and occasionally staying overnight was sufficient to warrant the description of their “living together”. The finding at [109] that “from time to time he slept at her place of abode” is not justified by reference to the respondent’s evidence as to what occurred after mid-to-late April 2014, and it does not explore the circumstances in which that occurred. In relation to the period before late April, the respondent’s evidence is unclear as to whether any “overnights” were other than as a result of his sleeping on the floor in the course of providing the deceased with care.

42. Whilst the state of living “together” does not require that the living occur at and from a single place, or that the two adults spend all of their time together at the same place, it will ordinarily include elements of interaction and sharing whilst engaging in activities associated with occupying the same place. Repeated visits for a singular purpose, without more, do not satisfy that description.

43. The appellant’s submission that, by reference to the respondent’s evidence and the uncontested evidence, it was not reasonably open to find that the parties were “living together” should be upheld. That conclusion is in accordance with the respondent’s statement to police made on the night of the deceased’s death. Grounds 1 and 3 are made out. The respondent was not an eligible person, and the appeal should be allowed.

The remaining grounds of appeal

44. The findings and conclusions challenged by the remaining grounds, other than ground 5, depend in part on his Honour’s assessment of the respondent’s credibility. That assessment is challenged, albeit indirectly, by ground 5. If the appellant is successful on that ground, he would be entitled to a new trial because this Court is not in a position to evaluate the respondent’s credibility and re-determine the remaining issues.

45. If I had not upheld the appeal on grounds 1 and 3, I would have done so on ground 5, and ordered that there be a new trial. My reasons for doing so follow.

46. In the part of his Honour’s judgment headed “General observations about the case”, the primary judge assessed the reliability of the respondent’s evidence. He did so by reference to seven matters (see Judgment [71] – [89]). Each concerned an aspect of the evidence

47. The second and third (Judgment [79], [83]) were relied on by the appellant as evidence that the respondent was acting as the deceased’s carer for reward. The second was a type-written note of the respondent intended for the deceased which commenced “Please note that the costs to you to keep me going so that I can look after you amount to $50,000 per year”. The primary judge described this as a “curious document, not readily understood without acknowledgement of the plaintiff’s disability”: Judgment [82]. The third was an email from the respondent to Westpac dated 5 May 2013 which stated that the respondent was expecting to receive payments from his “Auntie, for whom I am carer and who is working up to paying me $700 per week”. The primary judge considered the respondent to have written this to his bank “as an adversary not entitled to a truthful account from him. Again, it is difficult to appreciate that mindset without allowing for his disability”: Judgment [84].

48. The first, fourth and fifth matters were evidence directed to the respondent’s credibility more generally. The first was the voice recording of the respondent’s call to Triple-0 on the night the deceased died and a subsequent conversation between the respondent and Mr Cauvin. The primary judge described the evidence as suggesting “a manipulative, acquisitive side of [the respondent’s] personality coming to the fore”. His Honour added that the fact “it did (assuming that it did) can be explained by his disability”: Judgment [76]. The fourth was evidence of the respondent’s acknowledgement that he had given a recruitment agency a false curriculum vitae in order to improve his prospects of work. The primary judge described this evidence as “difficult to understand independently of his disability”: Judgment [85]. The fifth was the respondent’s agreement that in order to “survive somehow” one of his options was to lie to Centrelink about his having received of earnings incompatible with his eligibility for a disability pension. That evidence was said to be “not evidence of an able man. It is consistent with the mindset of a mentally disabled person”: Judgment [86]. In relation to the remaining two matters, the sixth was said by the primary judge to demonstrate the respondent’s “awareness of a disability”, and the seventh to be “evidence of paranoia”: Judgment [88], [89].

49. Having considered these matters, the primary judge concluded at Judgment [90]:

The plaintiff’s evidence, his conduct and the quality of his care for the deceased all fall to be assessed in the context of his disability. I do not believe that he was consciously dishonest in any of the evidence he gave to the Court, but recognition of his disability invites caution in the acceptance, or rejection, of what he says about particular facts.

50. The “disability” is what his Honour described at Judgment [66] as “problems with the [respondent’s] mental health” which were apparent in the evidence “notwithstanding the absence of any expert medical evidence directed specifically” to that topic. His Honour described at Judgment [67] ways in which he considered that disability manifested itself in the manner the respondent gave evidence. His Honour then proceeded to address the elements of the respondent’s claim, and the issues which they raised, from the position that the respondent suffered from some form of mental health disability.

51. There are two difficulties which arise from his Honour’s proceeding in this way and a third which arose for his determination of the remaining issues. The first, as the appellant submits, is that there was no expert evidence which permitted his Honour to make any finding as to the respondent’s mental condition and how it might affect or explain aspects of his behaviour or evidence.

50. It is sufficient here to refer to the statement of Beazley JA (as her Honour then was) in Strinic v Singh (2009) 74 NSWLR 419 at [60]; [2009] NSWCA 15:

The fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. In Saunders v Adderley [1999] 1 WLR 884 at 889, Sir John Balcombe, in delivering the judgment of the majority of the Privy Council, stated: “It is, of course, an error of law for a judge to make a finding of fact which there is no evidence to support, unless the matter is one which the judge is entitled to take judicial notice.”

53. Whether the respondent was suffering from some mental health disability which explained his conduct and aspects of his evidence was not a matter which could be assessed by reference to common knowledge. Nor was it a matter that should be assessed substantially by reference to presentation in court, where a person unfamiliar with that environment may react in an idiosyncratic way, particularly under cross-examination, and where the manifestations of any illness could fluctuate: see the observations of Basten JA in Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273 at [32].

54. The second difficulty is that in the absence of any such expert evidence the primary judge was not in a position to use the disability to assess the truthfulness of contemporaneous notes or communications authored by the respondent, or the respondent’s evidence more generally. A disability may explain why in some circumstances the person is likely to be untruthful and in others not, or it may suggest that the person is generally to be regarded as an unreliable reporter of the truth.

55. Thirdly, and significantly for the issue raised by grounds 2 and 4 (the “fee and reward” issue) to which the second and third matters (see [44] above) are relevant, his Honour’s finding that the respondent was mentally disabled does not explain why the fact of the disability supported an apparent conclusion that the evidence should not be regarded as truthfully recording the matters dealt with. His Honour’s observations at Judgment [81], [82] and [84], to the extent that they purport to do so, depend on an undiagnosed disability, the symptoms and manifestations of which cannot be known.

Conclusion

56. The orders which I propose are:

1. Appeal allowed.

2. Set aside orders 1, 2, 3 and 4 made on 30 May 2017 and in place thereof:

1. dismiss the plaintiff’s summons;

2. the defendant’s costs of the proceedings be paid out of the estate of the deceased (Miryana Smoje) on the indemnity basis.

3. Appellant’s costs of the appeal be paid out of the deceased’s estate on the indemnity basis.

4. The amount of $750,000 paid into court by the defendant be paid to the defendant’s solicitors or, if security was provided in lieu of that payment, that such security be delivered up to the defendant’s solicitors.

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Decision last updated: 04 December 2017