Ward v Shah

[2008] NTSC 43

Ward & Anor v Shah [2008] NTSC 43

PARTIES:	WARD, MICHAEL JAMES
and
WARD, JENNY ESTHER
v
SHAH, ELIJAH
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction
FILE NO:	12/08 (20803363)
DELIVERED:	27 October 2008
HEARING DATES:	5 September 2008
JUDGMENT OF:	THOMAS J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiffs:	V Farmer
Defendant:	Self Represented

Solicitors:

Plaintiffs:	Withnalls
Respondent:	Self Represented
Judgment category classification:	C
Judgment ID Number:	tho2008
Number of pages:	30
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Ward & Anor v Shah [2008] NTSC 43

No. 12/08 (20803363)

BETWEEN:

WARD, MICHAEL JAMES

First Plaintiff

WARD, JENNY ESTHER

Second Plaintiff

AND:

SHAH, ELIJAH

Respondent

CORAM:  THOMAS J

REASONS FOR JUDGMENT

(Delivered 27 October 2008)

1. This is a claim on Amended Originating Motion dated 1 February 2008

   seeking orders that the administration of the estate of Kimberley Michaela Ward by the defendant be revoked and that administration of the estate of

   the deceased be granted to the first and second plaintiff.

2. The plaintiffs also seek a declaration that they are entitled to receive the

entirety of the deceased’s estate in accordance with Part 4 of Schedule 6 of
the Administration and Probate Act and a declaration that the defendant is

not a person entitled to take an interest in the estate of the deceased.

1. On 23 November 2007, Letters of Administration for the estate of the

   deceased, Kimberley Michaela Ward, of 2/18 Gardens Hill Crescent, The

   Gardens in the Northern Territory of Australia were granted to Elijah

   Hussain Shah of 13 Craig Crescent, Coconut Grove in the Northern Territory

of Australia. The deceased was a customer service officer, who died
intestate on 18 November 2004 and who had, at the time of death, a personal

estate within the jurisdiction sworn not to exceed in total value the sum of $65,000.00. The Letters of Administration were granted to Mr Shah as the

defacto spouse of the deceased, he having been first sworn that he would

well and truly collect and administer the estate of the deceased according to
the law.

1. The essential issue on the hearing of this claim was the assertion by the

   plaintiffs that the defendant was not the defacto spouse of the deceased and

accordingly was not entitled to the grant of the Letters of Administration.
The plaintiffs are the parents of the deceased and assert that Letters of

Administration should be granted to them.

1. The only asset in the estate was an amount of $64,158 superannuation. This

amount of superannuation was held by an organisation known as HostPlus
who were the trustee of the death benefit. The plaintiffs had also made
representations to HostPlus concerning their interest in the deceased estate.

1. On 13 March 2007, there was a determination made by the trustee of the

   death benefit to pay the money to the legal representative of the deceased

   upon sighting Letters of Administration.

2. The Court file relating to the grant of Letters of Administration was

   tendered Exhibit P6. This shows that on 10 April 2007, the defendant filed

a caveat with the Supreme Court stating that he was the defacto spouse of
the deceased and intended to apply to the Supreme Court for Letters of

Administration under his entitlement as defacto spouse. On 7 November

2007 the defendant lodged an application claiming administration of the

estate be granted to him. The application was supported by an affidavit sworn by the defendant on 6 September 2008 claiming to be the defacto spouse of the deceased. The defendant, Elijah Shah, also swore an Affidavit

of Death dated 6 September 2007 annexing a Death Certificate. An
Affidavit of Publication and Search was affirmed by Jacqueline Kipling of

David C. Story Solicitors for the defendant on 7 November 2007. An

Affidavit of Assets and Liabilities was sworn by the defendant on

6 September 2007, showing that the total value of the assets of the deceased

was the superannuation which was valued at $64,158. The deceased had no
liabilities that were disclosed.

1. Also included in the file, Exhibit P6, is an Affidavit of Service sworn by

   Keshena Wilson on 26 September 2007 deposing to the fact that on

   11 September 2007 she served Jenny Esther Ward, the mother of the

deceased, with a true copy of the application for Letters of Administration
from David C. Story Solicitors. On 6 September 2007, the defendant swore

an Oath of Office that he would “well and truly collect and administer the estate of the deceased according to law”. The defendant sought a grant of Letters of Administration to himself.

1. An affidavit of the second plaintiff, Jenny Esther Ward, sworn 1 February

   2008, is Exhibit P5. Mrs Ward deposes to the fact that the documents

collected by her from the office of David C. Story on 11 September 2007
were as follows:

(i)        Correspondence dated 11 September 2007;

(ii)       Affidavit of witness to consent – Michael Ward;

(iii)     Consent to administration – Michael Ward;

(iv)      Affidavit of witness to consent – Jenny Ward;

(v)       Consent to administration – Jenny Ward;

(vi)      Affidavit of death sworn by Elijah Shah on 6 September 2007 with relevant annexures;

(vii)     Affidavit of assets and liabilities sworn by Elijah Shah on 6 September 2007 with relevant annexure;

(viii) Oath of Office signed by Elijah Shah dated 6 September 2007;

(ix) Application;

(x)       Affidavit of Delay sworn 6 September 2007.

1. The file, Exhibit P6, includes an affidavit dated 19 November 2007 sworn

   by Kasey Jay Stewart a solicitor with the firm of David C. Story. In that

affidavit is a copy of a letter dated 11 September 2007 (annexure “A”) to
Mrs Ward which, omitting formal parts, reads as follows:

“RE: Estate of Kimberley Michaela Ward

I refer to the above matter and advise that Mr E Shah the de facto
spouse of Ms Ward intends to make an application for Letters of

Administration.

I have enclosed the following documents by way of notice:
- Affidavit of Witness to consent (for both yourself and Mr Ward)
- Affidavit of Death
- Affidavit of Assets and Liabilities
- Oath of Office
- Application
- Affidavit of Delay

I ask that should you consent please complete the affidavit of consents and return them to my office. Should you not consent please be advised that an application will be made in 48 days hereof.”

1. In the affidavit of Kasey Jay Stewart sworn 19 November 2007 and marked

annexure “B” is a copy of a letter dated 12 September 2007 from Withnalls
solicitors which, omitting formal parts, reads as follows:

“RE: Estate of Kimberley Ward

I refer to your correspondence to Ms Jennifer Ward dated her passing. I have secured the entire distribution from the relevant superannuation body payable to Mr & Mrs Ward on behalf of Kimberley Ward.

11 September 2007 and advise that Withnalls has acted on behalf of
Mr & Mrs Ward dispute that at any time or the relevant time being
the date of death, Mr Shah was a defacto of the deceased and will not
at any time being the administrator of the lat Kimberley Wards’
estate.”

1. Annexure “C” is copy of a letter which Ms Stewart stated during cross

examination by counsel for the plaintiffs, was forwarded to Withnalls on
13 September 2007, although the letter incorrectly bears the date of

16 November 2007. Omitting formal parts, this letter states as follows:

“RE: Estate of Kimberley Ward

I refer to your correspondence dated 12 September 2007 and advise that my client instructs me that he was in fact the de facto spouse of the deceased, both leading up to and at the time of Ms Ward’s death.

My clients instructs me to continue with the application for Letters of Administration.

I note that I have today spoken with Samantha from Host Plus who has advised me that the current position of Host Plus is to pay 100% of the superannuation to the Legal Personal Representative of the Estate.”

1. It later emerged, in the evidence of Ms Stewart that in fact this letter was

   never forwarded to Withnalls as it bore the incorrect facsimile number. The facsimile number to which it was addressed was back to the office of David

   C. Story.

2. Following the grant of Letters of Administration on 23 November 2007,

   HostPlus paid out the amount of superannuation held in the name of

   Kimberley Ward to David C. Story solicitors for the defendant.

3. On 1 February 2008, being the date of the filing of the Amended Originating

   Motion, the plaintiffs obtained an ex parte order made by Olsson AJ

restraining the defendant from dealing with the assets of the estate of
Kimberley Michaela Ward. The matter was adjourned to 8 February 2008.

1. On 8 February Olsson AJ made orders for service of the Amended

   Originating Motion and supporting documentation. The matter was

   adjourned to 14 February 2008.

2. On 14 February the defendant, Elijah Shah, appeared before Olsson AJ who

adjourned the matter to 28 February 2008 to give Mr Shah an opportunity to
seek legal advice. Olsson AJ advised Mr Shah, that the matter was urgent.
On 1 April 2008, Mr Shah paid an amount of $20,000 into the Supreme

Court Litigant’s Fund pending the hearing of this matter.

1. The matter was adjourned on a number of further occasions. It was listed for hearing on 23 July 2008.

2. On 23 July 2008 the plaintiffs attended court for the hearing of the matter.

   I raised with Ms Farmer, counsel for the plaintiffs, whether she should

appropriately join the Registrar of the Supreme Court as a party to the
proceedings. Ms Farmer stated that she was not alleging the Registrar had

in any way proceeded incorrectly and that, in Ms Farmer’s opinion, it was

neither necessary nor appropriate to join the Registrar of the Supreme Court
as a party.

1. The essence of the plaintiffs’ claim is that the defendant was not in law the

   defacto spouse of the deceased and had no entitlement to the grant of Letters

   of Administration.

   Plaintiffs’ Evidence

2. I have confined my references to the evidence to the issue between the

   parties as to the status of the defendant with respect to Kimberley Ward. In

support of the plaintiffs’ claim, an affidavit of Michael Ward, the first
plaintiff, was tendered Exhibit P1. The first plaintiff is the father of the

deceased. Exhibit P2 is a copy of the caveat signed by the defendant, dated

10 April 2007. Exhibit P3 is copy of a caveat filed on behalf of the

defendant by David C. Story Solicitors on 26 September 2007. In this

caveat, the defendant claims he is the defacto spouse of the deceased, having
been in a relationship with her for a continuous period of not less than two

years preceding her death. An order by the Registrar (Exhibit P4) dated

16 October 2007, extends the caveat filed on 20 April 2007 by a further

seven days.

1. The first plaintiff gave evidence he had not personally been served with the

   application for Letters of Administration filed by the defendant. He gave evidence that his daughter (the deceased) resided with the defendant from June 2004 till early September 2004. The first plaintiff stated that in

   September 2004, the deceased asked to come home and then resided with her

   parents till her departure for Perth, Western Australia on 6 November 2004.

   Mr Ward gave evidence that during this time she spent most nights at her

   parents home. She brought all her personal possessions with her but left

   behind furniture that her parents had supplied when she resided with the

   defendant at Gardens Hill Crescent.

2. In cross examination the first plaintiff gave evidence that in September 2004

spouse of Kimberley Ward. In support of this assertion the second plaintiff
annexed a number of documents to her affidavit. These included her
statutory declaration dated 22 February 2007 provided to HostPlus stating
that at the time of her passing, Kimberley Ward was not in a relationship

with Elijah Shah. The declaration sets out the course of the relationship as
already detailed in her affidavit. Also annexed were copies of notes made
by Kimberley Ward. One of these, dated 7 November 2004, referred to the

the relationship between the deceased and the defendant had concluded.

1. The second plaintiff, Jenny Ward, gave evidence. An affidavit sworn by her

   on 1 February 2008 is Exhibit P5. In this affidavit, the second plaintiff deposes to the fact the deceased met the defendant in late July 2003 and

   formed a romantic involvement with him at the end of 2003. At this time

   the deceased commenced living with the defendant at 13 Craig Crescent,

   Coconut Grove. After that time, there were short periods when she did not

reside with the defendant. The deceased and the defendant reconciled at the
end of June 2004 and lived together at Unit 2/18 Gardens Hill Crescent,
Gardens Hill from 30 June 2004 to early September 2004. The lease was in

both their names. Mrs Ward gave evidence that in late August early

September 2004, the deceased returned to her parents home to live.

1. The second plaintiff denied that the defendant was at any time the defacto

   removal of the defendant from Kimberley’s private medical health fund. dated 6 November 2007 and her agreement with Grunt Labour Services. The

address stated is that of the Kimberley’s parents on Cox Peninsular Road,
Berry Springs.

1. Annexure “D” to the affidavit of the second plaintiff is a copy of the

   determination made by HostPlus administration dated 14 September 2006 to

   pay the full superannuation to the defendant as defacto spouse. The second

   plaintiff stated that she gave instructions to her solicitor, Vanessa Farmer, to

   appeal this determination.

2. Annexure “E” is copy of a letter from HostPlus administration stating that

after consideration of all documents provided, the full benefit would be paid
to “the Legal Personal Representative of the late Kimberley Michaela Ward

upon sighting Letters of Administration”.

1. On 18 July 2007, a notice of Intended Application for Letters of

   Administration by the plaintiffs was published in the Northern Territory

   News (annexure “F”) having been lodged by solicitors for the plaintiffs on

   the plaintiffs’ instructions.

2. On 11 September 2007, the second plaintiff accepted service of a number of

   documents which were handed to her by the receptionist at the office of

   David C. Story. These were the documents already enumerated.

3. Mrs Ward, the second plaintiff gave evidence that these documents appeared

to be draft documents which contained blanks, they had not been filed in the
Supreme Court. Withnalls, who were solicitors for the plaintiffs, wrote to

David C. Story, solicitors for the defendant, advising that they would not

consent to the grant of Letters of Administration to the defendant.

1. Also annexed to the affidavit of the second plaintiff was a copy of a tax

   invoice for the funeral expenses addressed to Mrs Ward. The plaintiff paid

   this account. No reimbursement had been received for these expenses. The

   funeral expenses were not listed as a liability in the grant of Letters of

   Administration to the defendant. The amount of the funeral expenses was

   $7,696.

2. The second plaintiff gave evidence that during the period the deceased had a

relationship with the defendant, they had not done anything together with
Mr and Mrs Ward as a family.

[33]   Under cross examination by the defendant, the second plaintiff gave

evidence that the defendant had only visited their home with the deceased on
one occasion. It is her evidence that during the time that the deceased and
the defendant were together, they would stay intermittently with other

people. Mrs Ward gave evidence that after she was served with the

documents in support of the defendant’s application for Letters of

Administration, she had taken the papers to her solicitor with instructions

that she did not consent to the defendant’s application. It is the second

plaintiff’s evidence that she had never asked the defendant to pay for the

funeral expenses for the deceased’s funeral.

1. At the conclusion of the Court sitting time on 23 July 2008, the matter was

adjourned to 5 September 2008 to enable Mr Shah to present the evidence he
wanted to put before the Court.

Evidence of Elijah Shah

1. The defendant, Elijah Shah, gave evidence that he is currently unemployed. He stated he first met the deceased in 2002. They had a sexual relationship

   for about three months before the deceased moved in to live with him at his

mother’s home. He gave evidence that they commenced living together in
about mid March 2003. The defendant gave evidence when he first met the
deceased that she was very troubled and was abusing benzodiazephines. The

defendant said he persuaded her to slow down but after a while the

defendant said he and Kimberley were both using morphine.

1. In July 2003, they both moved to Northern New South Wales to live with his

   eldest brother. In October they attended a wedding and about a week later moved into a caravan park in Lismore where they stayed for a month. The deceased started to get depressed and was taking anti-depressants. She lost

   her job at the local bakery and fell into a pattern of depression, continually

crying. In late November early December they returned to Darwin and
resumed living with the defendant’s mother. They were both addicted to
morphine and decided to move in with the defendant’s father at Gunn Point
and “detox”. After a few weeks they returned to his mother’s home in Craig
Crescent, Coconut Grove. The defendant obtained work as a security guard.
Kimberley Ward was working at the Sky City Casino. Mr Shah gave

evidence that in June 2004 the deceased argued violently with the
defendant’s mother and became quite aggressive. He stated that Kimberley

returned to live with her own parents. Subsequently Kimberley and Elijah
Shah moved in together at Unit 2/18 Gardens Hill Crescent. Kimberley

became depressed. The defendant gave evidence he was working a number

of shifts and was not often home. The deceased returned to live with her
parents again but would visit the defendant.

1. On 6 November 2004, the deceased left to travel to Perth. They spoke on

   the telephone. The defendant said the deceased asked him to travel down to

   Perth. The defendant had work commitments and could not leave Darwin.

   The deceased told him she did not want to return to Darwin and asked the

   defendant to send down his curriculum vitae so she could check for security

   work where he could be employed.

2. After the deceased died on 18 November 2004, the defendant travelled to

   Northern New South Wales to live with his brothers. He did not return to

   Darwin for about two years.

3. Photographs of clothing the defendant says Kimberley left in their unit at

   Gardens Hill Crescent, were tendered Exhibit D7. Two letters written by

   Kimberley were tendered Exhibit D8. The letters are to Kimberley’s sister

   and Elijah’s mother. They are not dated or signed.

[40]   The defendant tendered a number of statutory declarations which are

Exhibit D9. They include statutory declarations sworn by the defendant that

he had been in a defacto relationship with the deceased for approximately

two years. A statutory declaration by Deborah Shah, mother of the

defendant, states the deceased and her son lived together in her home for at

least 12 months before moving into their own unit at Gardens Hill Crescent.

It was her belief that they were in a defacto relationship. Mrs Shah was

aware the deceased stayed with her parents for a few weeks before leaving
for Perth.

1. Other statutory declarations are from a number of persons who deposed to

   the fact that they knew the defendant and the deceased to be in a defacto

relationship and that they were very close as a couple. The defendant stated
that other than himself, the persons who had prepared the statutory

declarations were not available to attend Court to be cross examined on their

statutory declarations. The defendant acknowledged he understood this
might affect the weight that the Court could place on these documents.

1. A copy of the HostPlus membership application form prepared by the

   deceased on 24 April 2004 is Exhibit D10. This form indicates that

   Kimberley Ward had nominated Elijah Shah as the preferred beneficiary of her superannuation.

2. The Tenancy Agreement for 2/18 Gardens Hill Crescent dated 26 June 2004,

is for a period of six months commencing 30 June 2004. This agreement is
in the name of Kimberley Ward and Elijah Shah. The Tenancy Agreement is

violence incident on 30 June 2003 in which the deceased was involved with

Exhibit D11.

1. Two further statutory declarations by relatives of the defendant deposing to

   the defacto relationship between the defendant and the deceased are

   Exhibit D12.

[45]   A statutory declaration prepared by Kenlee Franklin, sworn 4 September

2008, deposed to the relationship between Kimberley Ward and Kimberley’s

mother, Kimberley’s problems with drug abuse and her relationship with the
defendant. This is Exhibit D13.

[46] Copy of the Letters of Administration are Exhibit D14.

1. Copy of a letter from Withnalls, dated 4 April 2008, to the defendant

   seeking discovery is Exhibit D15.

2. Copy of bank statements in the name of Mrs DM Shah is Exhibit P16.

[49]   The defendant gave further evidence concerning the deceased’s drug

addiction. He referred to the care he provided her with during her depressed
moods.

1. Under cross examination by Ms Farmer, the defendant agreed that it was

   possible the deceased was in a domestic relationship with a John Charlton

   early in March 2003. The defendant was also asked about a domestic single if she was living with the defendant when she reported this incident, the defendant stated that at that time Kimberley was heavily into drugs, was

   getting into lot of trouble and that what she said was not reliable.

[51]   Documents produced on subpoena by the Commissioner of Police were

tendered and marked Exhibit P17. They refer to reported incidents of

domestic disturbances involving Kimberley Ward as the victim. Police

attended upon the victim on 1 and 5 March, 29 and 30 June 2003. The
report in March involved Mr Charlton. The reports in June involved
Mr Carroll. With reference to an incident reported to police on 1 March

2003, Police attended 6 Laurie Court, Stuart Park and spoke to Mr Charlton

who reported to Police he had argued with his girlfriend on 5 March 2008.
Police again attended 6 Laurie Street and spoke to Kim Ward and John

Charlton and reported as follows: 

“Description spoke to both participants they stated that they have sorted some of their troubles out but are seeking counselling – they stated that they have been in a relationship now for two years. Both stated that they have support with friends/family. Wish no further police action – thanked mbrs for calling back. DVU contact card left and advised to call if they require any further information/assistance. At this stage nil further required from this unit.”

1. The defendant stated that Mr Charlton is not a very nice person who would

   say anything to police to get out of trouble.

2. On 29 June 2003, there was a report of a domestic violence incident at

   5 Mangola Court Larrakeyah involving Kim Ward and Dean Carroll, police

   attended and spoke with Kim Ward.

3. There is a further report on 30 June 2003 of an incident in which police

attended 5 Mangola Court, Larrakeyah after receiving a complaint about a
domestic disturbance. The complainant was Kimberley Ward who stated her

ex-boyfriend kept coming round and that they argued.

1. On 4 July 2003 police attended upon Kim Ward. Ms Ward complained

about her ex-boyfriend Dean Carroll who visited her at 139 Smith Street and
was causing her problems.

1. The defendant said the deceased had told him about an incident between

   herself and Mr Carroll on 30 June 2003. The defendant could not remember

much about it. He stated he knew Mr Carroll and that the deceased had been
in a relationship with Mr Carroll years ago.

1. The defendant agreed that at this time between March and June 2003, he was

also addicted to drugs. He was taking amphetamines and ecstasy and said he
was going to a lot of parties.

1. The police report of the incident that occurred on 30 June 2003 records that

   Kimberley Ward had told police she was “single, had not married, never

   married”.

2. The defendant was taken to handwritten notes made by Kimberley Ward

   included in annexure “A” to the affidavit of Mrs Ward (Exhibit P5).

3. The defendant disagreed that on 7 November 2004, Kimberley had written a

note to the effect that she wanted him removed from her MBF Health Fund.
He said he could not be sure it was the deceased’s handwriting. He gave

evidence he could not explain why, on 8 November 2004, Kimberley would write a note to the effect that she wanted her name removed from the lease. When asked about the note the deceased wrote on stating that she was

leaving Darwin to get away from people meaning the defendant, Mr Shah

stated Kimberley usually wrote his name with a square E. He said he knew Kimberley was confused and angry which might explain why she wrote the

notes that she did. The defendant stated that as soon as Kimberley had died
he left the unit at Gardens Hill Crescent. The bond money at the time the

lease had been entered into had been paid by Kimberley’s parents. He

presumed the bond money was used for the unpaid rent after he left the unit.

1. The defendant was then asked questions about the monies he received

   following the grant of Letters of Administration. He said he received

   $51,000 from David C. Story. He paid this into his account at Bank SA.

   The defendant agreed he had not responded to a letter from Withnalls dated

   4 April 2008 seeking discovery of bank statements. He agreed this letter

   was handed to him in Court on 30 April 2008. He referred to statements he had handed to Ms Farmer shortly before coming into Court on 23 July 2008.

2. The defendant agreed that on 1 February 2008, the Court had ordered an

   injunction to prevent him dealing with these monies. He first became aware

of the injunction when it was brought to his attention on 9 February 2008.
He agreed he then appeared before Olsson AJ on 14 February 2008. On

28 February he appeared before Justice Mildren and sought an adjournment

for three weeks because he was attending rehabilitation. The defendant

agreed Justice Mildren warned him if he spent the money he could go to
gaol.

1. Ms Farmer referred to the document the defendant had just handed to her in Court being bank statements of Mrs DM Shah (Exhibit P16). Statement 58

   is for a period from 4 March to 1 April 2008. A credit appears on 28 March

   2008 from GBS internet Elijah in the amount of $20,000. There is a

withdrawal shown on 1 April 2008 of $20,005.40 which the defendant says
his mother paid into the Court account.

1. The defendant was referred to copy of an Australian Central Credit Union

   Statement included in Exhibit P16. There is a withdrawal of $40,000 on

   31 January 2008. On 28 December 2007, the defendant transferred $44,995

   into his mother’s bank account. He had already spent the difference

   between this amount and the $51,000 he had received. From the money, he

   transferred to his mother’s account $20,000 was paid into the account at the Supreme Court. He gave evidence he owed his mother $20,000 and he paid

   that back.

2. The defendant stated that as he had not spoken to Mr and Mrs Ward, he was

not aware they had incurred funeral expenses with respect to the deceased.
He stated, from what he knew, there were no outstanding debts of the estate.

The defendant disagreed that $20,000 of his money was still in his mother’s

bank account and denied that he had failed to account fully for the money.

[66] The defendant called Kasey Stewart as a witness.

1. Kasey Stewart is a solicitor with the firm of David C. Story. Ms Stewart

   applied for Letters of Administration on behalf of the defendant.

2. On 11 September 2007 Mrs Ward attended the office of David C. Story.

   Ms Stewart swore an affidavit, dated 19 November 2007, which is part of

   Exhibit P6. Ms Stewart stated she filed the application for Letters of

   Administration after the date of service of the documents on Mrs Ward. She

   did not think the matter was contested. No originating motion had been

   filed by the parents.

3. Ms Stewart gave evidence that she had received a letter from Withnalls

   dated 12 September (annexure “B” to her affidavit) stating the parents did

   not consent based on their belief that they had already secured the estate from the relevant superannuation fund. Ms Stewart said she believed she

   had put the parents on notice of the application. After 48 days had expired

   she attended the Registry office of the Supreme Court. Ms Stewart gave evidence she was informed by Anne O’Rourke, a member of the Registry staff, that she telephoned Withnalls asking if they intended to dispute the application but had received no response. Ms Stewart said she believed that

   the parents of Kimberley Ward had decided not to pursue the matter.

4. Ms Stewart gave evidence that she was now aware that annexure “C” to her

affidavit, a letter from her office which she referred to as in fact being dated
13 September 2007, although it now bears the date 16 November 2007, had

never been communicated to Withnalls office. The letter was originally
dated 13 September 2007. It had been sent to the facsimile number of

David C. Story’s by mistake. It should have been sent to the facsimile

number for Withnalls. Ms Stewart agreed this letter had never been
forwarded to or received by Withnalls.

1. Ms Stewart gave evidence that in preparing the application for Letters of

   Administration on behalf of the defendant, he had told her he had been in a

   defacto relationship with the deceased for over two years. He had said they

   had lived together for all that time except for a period of two months at the

start of the relationship. He told Ms Stewart the deceased had gone to Perth
for a month to visit her cousin and intended to return to Darwin.

1. The bundle of documents that were served on Mrs Ward are Exhibit P18.

2. Ms Stewart agreed that once the application for Letters of Administration

were filed with the Court, a copy had not been served on Mr or Mrs Ward or
Withnalls. Ms Stewart agreed that with hindsight she should have

telephoned Withnalls to ask whether their clients were consenting to the

application or not. Ms Stewart stated that at the time she thought she had
put the plaintiffs on notice and that she should proceed with the application

on behalf of her client, Elijah Shah.

Findings

1. After hearing all of the evidence I concluded that Elijah Shah was not a

credible or reliable witness. On his own evidence he was, during substantial
periods of his relationship with Kimberley, affected by drugs. He agreed

that Kimberley had moved out of the unit they shared in Gardens Hill

Crescent before she left to travel to Perth on 6 November 2004. He did not

have any real recollection of when she had moved out.

1. Mr Shah gave instructions to his solicitor, Ms Stewart, that he had been in a

   defacto relationship with Kimberley Ward for over two years yet, even on

   his own evidence, the period of the defacto relationship was considerably

   less than two years.

2. Mr Shah gave evidence that he and Kimberley moved in together to live with

   his mother at 13 Craig Crescent, Coconut Grove about mid-March 2003.

   Mrs Ward gave evidence her daughter, Kimberley, commenced a

relationship with Elijah Shah in July 2003. Elijah Shah tendered a statutory
declaration from his mother Deborah Shah stating that the couple had lived

with her at 13 Craig Crescent, Coconut Grove for at least 12 months before
moving into their own unit at Gardens Hill Crescent. On the basis the
couple moved in together at Gardens Hill Crescent at the end of June 2004,
this would support the fact they did not commence living together at the

home of Elijah Shah’s mother prior to June/July 2003.

[77]   The documents produced on subpoena from the Commissioner of Police

(Exhibit P17) support an inference that between March and July 2003,

Kimberley Ward was not living in a defacto relationship with Elijah Shah.

1. I accept the evidence of Mrs Ward that in July 2003 her daughter Kimberley

commenced a sexual relationship with Elijah Shah. I accept the evidence of
Mrs Ward that Kimberley continued to spend a lot of her time with her

parents. I find it difficult to determine exactly when Kimberley and the

defendant commenced living together. I am satisfied, on the balance of

probabilities, it was not before July 2003.

1. I accept the evidence of Mr and Mrs Ward that toward the end of August,

early September 2004, Kimberley returned home to live with her parents at
Cox Peninsular Road, Berry Springs. Kimberley did not resume

cohabitation with the defendant. On 6 November 2004 she departed for
Perth where she remained until the date of her death on 18 November 2004.

1. I do not think there is any credible evidence on which to base a finding that

   Kimberley Ward intended to resume a relationship with the defendant.

2. During the time that Kimberley Ward and Elijah Shah were living together during 2003 and 2004, there were intermittent times when Kimberley would

return home to her parents. I accept the evidence of Mrs Ward that prior to
the couple signing a lease for the unit at Gardens Hill Crescent in June 2004,

Kimberley spent periods of time not living with the defendant. They had

been reconciled in June 2004 and subsequently signed a lease together. This

arrangement lasted approximately two months although they had committed themselves to a six month lease. Kimberley returned to her parents home to

live at the end of August, early September 2004.

1. There is no evidence, during the period of their cohabitation, that Kimberley

and the defendant acquired property together. They both had spasmodic
employment and each contributed to their joint living expenses. Mr Shah’s
parents had provided them with accommodation from time to time.

Kimberley’s parents had provided the bond money for the unit at Gardens

Hill Crescent and provided the couple with furniture for the unit.

1. The legislative provisions that are relevant to the issue of whether a defacto

relationship existed are s 3A of the De Facto Relationships Act which
provides as follows:

“3A De facto relationships

(1)

For this Act, 2 persons are in a de facto relationship if
they are not married but have a marriage-like
relationship.

(2)

To determine whether 2 persons are in a de facto
relationship, all the circumstances of their relationship
must be taken into account, including such of the
following matters as are relevant in the circumstances of
the particular case:

(a)	the duration of the relationship;
(b)	the nature and extent of common residence;
(c)	whether or not a sexual relationship exists;
(d)

the degree of financial dependence or financial support, between them;

(e)	the ownership, use and acquisition of property;
(f)	the degree of mutual commitment to a shared life;
(g)	the care and support of children;
(h)	the performance of household duties;

(i)        the reputation and public aspects of their relationship.

(3)

For subsection (2), the following matters are irrelevant:

(a)	the persons are different sexes or the same sex;
(b)	either of the persons is married to another person;
(c)	either of the persons is in another de facto relationship.”

1. I address each of these matters which are to be taken into account.

(a) The duration of the relationship when Kimberley and the defendant

lived together as man and wife in a defacto relationship was at the

most 13-14 months from July 2003 to late August early September

2004.

(b)	The defendant and Kimberley resided together in a variety of
residences, including the home of the defendant’s mother, the home of the defendant’s brother in Northern NSW, the home of the defendant’s father and a unit at Gardens Hill Crescent in which the
lease was in their joint names. This lease commenced on 30 June 2004. Kimberley left the shared unit late in August 2004 and
returned to live with her parents at Cox Peninsular Road, Berry Springs until her departure for Perth on 6 November 2004.
(c)	A sexual relationship existed.
(d)	There were no arrangements for financial support. Each of them
contributed to their general living expenses while they were working. The parents of Kimberley provided some financial assistance to

Kimberley including provision of the bond money when the lease

was taken out on the unit at Gardens Hill Crescent and provision of
furniture. The parents of Elijah Shah provided them from time to

time with accommodation.

(e) There is no evidence the defendant and Kimberley acquired any joint property or that either of them owned property apart from some

personal possessions.

(f) I am not able to find evidence there was a commitment by Kimberley

to a shared life.

(g)	There were no children of the relationship.
(h)	Mr Shah gave evidence they looked after each other. There is no
evidence about what household duties either of them performed when they resided with either of Mr Shah’s parents or with Mr Shah’s
older brother. They were together at the unit in Gardens Hill Crescent for a very short period of approximately two months.

Mr Shah gave evidence he was working outside the home for long

hours at this time and was not home very much.

(i)          Friends and family of Mr Shah have attested in statutory declarations

that there was a defacto relationship between Kimberley and Elijah. These statutory declarations attest to the opinions of the deponents.

They refer to the intensity of the relationship and to the relationship

at a particular time. They are not of much assistance with respect to
whether in law Mr Shah was in a defacto relationship with
Kimberley.

The family of Kimberley knew she was in a relationship with

Mr Shah but had never recognised Mr Shah as having a defacto

relationship with Kimberley. Mr Shah was not included in the
activities of Kimberley’s family. Kimberley spent a lot of time with
her parents and other members of her family unaccompanied by

Mr Shah.

1. The other legislative provision that is relevant to consider is s 16(1) of the

   De Facto Relationship Act which provides as follows:

   “Except as provided by subsection (2), a court shall not make an
   order under this Division unless it is satisfied that the de facto
   partners have lived together in a de facto relationship for a period of

   not less than 2 years.”

   Subsection (2) is not relevant because there are no children involved.

2. I am aware that in this matter Mr Shah is not seeking an order under the

   De Facto Relationship Act. Rather it is the plaintiffs who have to prove on

   the balance of probabilities that Mr Shah was not in a defacto relationship

   with their daughter Kimberley.

1. The other provision of peripheral relevance is s 67 of the Administration and

   Probate Act which provides that where an intestate is survived by both a

spouse and a defacto partner the defacto partner is entitled to the personal
chattels of the intestate if there was a continuous defacto relationship of not
less than two years immediately preceding the intestate’s death and the

intestate did not in that period live with the person to whom they were

married.

1. I have been unable to find any decisions in the Supreme Court of the

   Northern Territory on the issue of a defacto spouse inheriting a deceased

   estate.

2. I did make reference to a number of authorities from the Supreme Court of

   New South Wales which are based on the same or similar legislation to the

   Northern Territory, in particular, the meaning of “defacto relationship” as

   set out in s 3A of the De Facto Relationships Act 1991.

3. In Nelson v Brennan [2002] NSWSC 979, a decision of the Supreme Court

of New South Wales delivered 21 October 2002, Master McLaughlin
considered the same criteria as set out in s 3A of the NT legislation referred
to above. McLaughlin J found a defacto relationship existed between the
plaintiff and the deceased. Two of the important reasons for the finding

were: 

1)             because they had lived together continuously over a period in excess

of four years; and

2)             the defendant to the proceedings, who was the executor to the

deceased’s Will, had completed the death certificate describing the

deceased as being in a defacto relationship.

1. In Sim v Powell (1997) 22 Fam Cr 243, a decision of the Supreme Court of

   New South Wales delivered 10 September 1997, Young J considered exactly

   the same criteria as set out in s 3A of the NT legislation.

[92]   His Honour dismissed the plaintiff’s claim that a defacto relationship

existed. In the course of his reasons for judgment his Honour, after
considering all the criteria that were to apply in deciding whether a defacto
relationship existed, stated:

“Looking at all those factors together, it does not seem to me that the plaintiff has established on the balance of probabilities that for a two year period between 1990 and 1994, he and the defendant were living as husband and wife.”

1. In Rakusan v Edgecombe; Edgecombe v Edgecombe (Estate of Barry Stuart

   Edgecombe) an unreported decision of Master McLaughlin delivered

   20 September 1995, the Master considered the competing interests between

   the widow of the deceased and the plaintiff who claimed to be in a defacto

relationship with the deceased at the time of his death. Master McLaughlin
awarded an amount of $50,000 to the plaintiff from the estate of the
deceased. In the course of his reasons for judgment, Master McLaughlin

found that the period of the defacto relationship was twenty months. He

stated: 

“The relationship between the plaintiff and the deceased was only a
short one. However, the evidence satisfies me that it was the
intention of the parties to continue their lives together and that that
would have happened except for the untimely death of the deceased.”

1. In the matter before this Court, I find on the evidence that the defendant,

   Elijah Shah and Kimberley Ward did cohabit together between July 2003 and August 2004. This was not a continuous period of cohabitation but broken from time to time when Kimberley returned to live with her parents.

   Kimberley and the defendant were not residing together at the time of

   Kimberley’s death. They had taken out a joint lease of a unit in Darwin at the end of June 2004. Two months later Kimberley moved out of the unit

and returned to live with her parents until she left to travel to Perth in
November 2004. There is no credible evidence that Kimberley intended to

resume the relationship.

1. The plaintiffs have satisfied me that, on the balance of probabilities, the

   defendant was not in a defacto relationship with their daughter Kimberley as

   at the date of her death on 18 November 2004.

2. I will hear from the parties as to the appropriate orders and deal with the

   issue of costs.