Zahra v Francica

[2009] NSWSC 1206

CITATION:	Zahra v Francica [2009] NSWSC 1206
HEARING DATE(S):	2 - 4 November 2009
JUDGMENT DATE :	4 November 2009
JURISDICTION:	Equity
JUDGMENT OF:	Bryson AJ
DECISION:	Judgment to the defendant with costs.
CATCHWORDS:	FAMILY PROVISION – Claim by former de facto – On the evidence, not an eligible person because the relationship ended during the testatrix’ lifetime – consideration of merits of claim – If an eligible person, no provision would have been ordered. - TRUSTS AND TRUSTEES – Claim by former de facto to be entitled to a resulting trust of a half interest in the testatrix’ house failed for want of credible evidence of a contribution to purchase money.
LEGISLATION CITED:	Family Provision Act 1982 s 6(1)
CATEGORY:	Principal judgment
CASES CITED:	Eggins v Robinson (2000) NSWCA 61 Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Neilson v Letch [2006] NSWCA 254 Plunkett v Bull (1915) 19 CLR 544 Vandervell v Inland Revenue Commissioners [1967] 2 AC 291
PARTIES:	Karmelo Zahra (P) Charles Paul Francica as Executor of the Estate of Mary Francica (D)
FILE NUMBER(S):	SC 6209/06
COUNSEL:	J Blackah (P) J Van Aalst (D)
SOLICITORS:	Watson & Watson (P) John Hertz & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

WEDNESDAY, 4 NOVEMBER 2009

6209/06 KARMELO ZAHRA v CHARLES FRANCIS FRANCICA as Executor of the ESTATE OF MARY FRANCICA

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

“... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”

2 A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson, see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA’s par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 171 show that the standard of proof is not affected, and the relevant standard is proof on the balance of probabilities.

3 It is important to state at the outset that I take a severely adverse view of the plaintiff’s evidence and credibility. His evidence was lacking in detail at many significant points. He made striking claims of lack of memory, and his case was lacking at a number of points in supporting documentation or other corroborative evidence which could well have been available although its absence was not explained. I found his general demeanour most unimpressive. He did not follow directions which I gave relating to interpretation of his evidence. He gave many purported answers which did not respond to questions, and he tended to attempt to brush off difficulties.

4 It is particularly striking to me that he gave an account of dealings by himself with a solicitor in the transactions of April 1994, transactions in which the deceased Mary Francica must have been involved, which I regard as highly improbable. He claimed not to know important details. There were overall improbabilities about what he did say, for example, the “Yes boss” conversation which he gave as the reason for the title to the property at 1471 Botany Road appearing in her name. I refer to this passage again later. The absence of any corroboration of events of April 1994 is significant, for example, the evidence of solicitors to whom the deceased must have given instructions and who are highly likely to have made a written record of instructions on how money was to be dealt with was simply not produced, nor was its absence explained.

5 It was also striking that there was an absence of records of banking transactions showing the movement of money, solicitors’ accounts and statements explaining their dealings with money and records relating to investments, change of investments and other movements of money, at other points than the events of April 1994 where such evidence could well have been significant. It is highly likely that careful instructions are taken by solicitors and careful records made when solicitors apply money of one client, or partly owned by two clients, to or towards acquisition of title by someone who is not the owner or sole owner of the money. For his own protection it is likely that a solicitor in such a situation would make a careful record. So a solicitor could well have obtained written instructions and would be highly likely to obtain a written direction about the movement of money and the application of money, to take the example which occurred, arising from the sale of one co-owned property to the purchase of another property in the name of one only. None of this was in evidence.

6 The plaintiff’s claim of entitlement to the property at 1471 Botany Road, Botany depends on his allegation that there was a resulting trust arising from contribution made by him to the purchase money. An important and recent statement of the law relating to resulting trusts in relation to purchases of real property was made by Mason P in Neilson v Letch [2006] NSWCA 254, at pars [25] to [28] inclusive where his Honour restated the effect of important and recent authorities. Authorities on this subject extend back some centuries. Consideration was begun almost 500 years ago when common law judges became concerned with identifying uses upon which real property was held as a result of the enactment of the Statute of Uses in the time of King Henry VIII. This field has been well trodden and is well established. The modern authorities, however, were referred to by Mason P.

7 An important aspect of the subject is that resort is had to the law relating to resulting trusts when there is no other explanation available in arrangements made by the parties, particularly by the owner of the money, whether express arrangements or arrangements which can be understood from their conduct. Mason P cited (at [27]) the following statement from the speech of Lord Upjohn in the House of Lords in Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 at 313:

“In reality the so-called presumption of a resulting trust is no more than a long stop to provide the answer when the relevant facts and circumstances fail to yield a solution.”

8 If the events which the plaintiff claims took place there must as a matter of reasonable certainty have been some surrounding arrangement between himself and Mary Francica which furnished context and explained the disposition. However, his explanation starts at the long stop or explanation of last resort, and as a matter of high likelihood he has left out of his evidence any real comprehensible dealing, or in my finding any true dealing with the surrounding arrangements. Surrounding arrangements must have existed and he does not reveal them. A resulting trust applies where a person pays purchase money for land and title is taken in the name of someone else but it does not arise if the intention to the parties, especially the one who paid the money, with respect to how beneficial ownership can be held can be ascertained in some way.

9 The plaintiff at one time lived in a de facto relationship with Mary Francica who died on 25 July 2005. He claims that the de facto relationship continued, was interrupted for a short time but resumed and existed at the time of her death. The defendant, Charles Paul Francica, her son, obtained probate on 25 October 2006 of her Will of 28 January 2005. This Will gave the plaintiff $10,000 but divided her estate among the five of her seven children who survived her.

10 The significant assets disclosed and valued for the probate application amounted to $1,074,881. However, there are other passages in evidence dealing with the present state of her assets. The significant assets were or are derived from her ownership of property at 1471 Botany Road Botany, of which she was the sole registered proprietor, and the value of this property has been established by evidence and agreement at $750,000. She also had money in investment accounts at banks totalling approximately $170,000. She had other assets but I have given those which have been most significant. There have of course been changes in amounts and values with acts and events in the administration of the estate and litigation. However, there has been no distribution to anybody.

11 The plaintiff’s principal claim as I have already said is that he is the equitable owner of a half share in 1471 Botany Road. He contends that it was bought in a purchase settled on 27 April 1994 with funds from the sale of a house in Catherine Street Leichhardt, which he and Mary Francica sold in a sale also settled that day. They were registered proprietors as tenants in common in equal shares of the Leichhardt house. His case assumes that the beneficial interests in the Leichhardt house were in equal shares, the same as the registered interests. This may well be correct. In any event nothing else has been shown or contended for.

12 Mary Francica was born in Malta in 1938 and came to Australia in 1947. She was married to Charles Francica for many years. He died on 3 October 1992. At that time she had been separated from her husband for some years. She worked for many years, her last employment being as caterer at St Vincent’s hospital. She had a disabling work injury and had retired by May 1994.

13 The plaintiff was born in Malta in 1932 and came to Australia in 1954. From 1967 he worked on the wharves as a forklift driver. He retired in November 1991 and was paid a retirement benefit of $95,585.75 by Strang Patrick Stevedores. He worked after that, but only for a few days at a time, until early in 1994. His earnings of course were much smaller. The last earnings of which evidence speaks are in a pay slip which shows that on 23 January 2004 his earnings in the year to date were $1,821.60.

14 Apart from savings from earnings, at the time they bought the Leichhardt house each had significant resources to apply towards buying the Leichhardt house. The plaintiff bought land in Lake Heights near Port Kembla in about 1956 and later built a house there which he sold in 1967. In 1977 he bought a house in Hansard Street Zetland and he sold that in 1988 for $134,500. He and Mary Francica bought the house in Catherine Street Leichhardt for about $230,000 in a purchase settled on 21 December 1988. Of this he says (par 14 of his affidavit):

“We both contributed approximately equal amounts to the purchase of 319 Catherine Street from the proceeds of our respective sales.”

15 This is no proof of anything. He does not say how much, from what sources, he or she put in money. Having regard to my view of his credibility overall I attribute no weight to his evidence about contributions. But that leaves nothing to disturb the conclusion that the interests in the Leichhardt house were as on the title register, tenants in common in equal shares. He had $134,000 from the sale of Hansard Street. She had money from the sale of a property in Hillsdale. The totals are not enough to pay for the purchase and what else each had and contributed to the purchase cannot be known. They co-owned Catherine Street until 1994 and then they sold it.

16 They both had jobs and earnings until the plaintiff retired in 1991 and perhaps somewhat later for Mary Francica. The plaintiff says he does not know what she spent her wages on.

17 In March 1992 each made a Will in favour of the other subject to survival, with gifts over. In 1994 they made three real estate transactions which were all settled on 27 April 1994. There are small differences in the evidence about the date but this date is the one which the plaintiff gave in his affidavit and repeated in oral evidence. It is probably correct and it agrees with what is alleged in his further Amended Statement of Claim. The defendant mis-stated this date at one point and was unable to explain where he got the wrong date, 19 April 1994. It was contended that this was adverse to the defendant’s credibility but I do not regard it as more than a matter of minimal significance.

18 On 27 April 1994 the plaintiff settled the purchase of a house in Yagoona Street Belmore for $171,000. Mary Francica settled the purchase of the house at 1471 Botany Road for $285,000 and they both settled the sale of Catherine Street for $250,000. There is no evidence from the solicitors who acted for them both on all these transactions about what money came in or how it was applied. The plaintiff gave evidence which I do not believe to the effect that the solicitor was not given instructions that 1471 Botany Road was to be in Mary Francica’s name. How the $250,000 from the sale of Catherine Street was applied cannot be known from the evidence. $250,000 came in from the sale of one house, and $456,000 went out to pay for two houses, one each. The plaintiff says he funded the purchase of Yagoona Street Belmore “from my retirement payments in 1991.” This is impossible. $95,500 in the bank at the end of 1991 could not become $171,000 by April 1994. There must have been other money from somewhere.

19 The plaintiff had a long established gambling habit and still does. It is unlikely that he had accumulated significant funds but what he had actually done is not known. The evidence does not enable me to establish the scale of his gambling. It casts a little doubt on whether he still had the funds he received in November 1991. He produces no supporting records about any of his investments. More than $200,000 extra came in from somewhere, and if the plaintiff used his retirement money it was not enough to be half of that.

20 The plaintiff gives this conversation in his affidavit, par 24, the closest he gives to an explanation of the transaction:

“The property was registered in the deceased’s name only as a result of a conversation I had with her in which she said words to the effect ‘33 Yagoona Street is in your name, so 1471 Botany Road should be in my name’. I said words to the effect ‘Yes boss’.”

I do not believe that this conversation happened, but if it did it would support the conclusion that each was to be the sole owner of one house, the sole beneficial owner. If the words he claims were used that was what they arranged.

21 There must have been significant further sources of money to carry out these transactions. It is well possible that the plaintiff got half the proceeds of Catherine Street and used it with other money towards the purchase of the house at Belmore. Whether or not this happened, the plaintiff has not satisfied me on the balance of probabilities that he contributed half the purchase money or any money at all to the purchase of 1471 Botany Road. His behaviour and his evidence certainly never showed that the Belmore house, or any share in it, was held for her in any sense. There was no corroboration or confirming statement, written or oral, from Mary Francica for the idea that the plaintiff had any interest in the house at 1471 Botany Road.

22 For that matter there is no behaviour of his between 27 April 1994 and her death which was an act of ownership of any interest in the house. He only did that after she died and he found out she had changed her will.

23 In April 1996 the plaintiff sold his Belmore house and bought 1449 Botany Road in his own name for $189,000 in September 1996. This house is 150 or 200 metres away from 1471 Botany Road. Mary Francica had no part in these transactions. He still owns 1449 Botany Road and he lives in it.

24 Mary Francica had other possible sources of funds or resources, that is other than proceeds of the sale of the Leichhardt house. Mary Francica once owned a rental property in Hillsdale which she sold for $85,000 in about June 1998. The proceeds could have been used for the purchase of Catherine Street. There is no proof of what she did with the proceeds; she could have kept them for six years and had them available. She had a strong habit of saving money and living frugally. She had a large amount of money in bank accounts at her death.

25 In 1965 Mary’s parents owned a house in Arden Street, Clovelly. Her father died on 3 December 1965 and the house passed to her mother who died on 16 April 1966, and her mother’s executors sold it to Mary and her husband for $14,000 and conveyed title on 27 May 1969. Mary Francica and her husband remained owners until 1992. During this period they separated and were divorced. Her husband severed the joint tenancy on 30 September 1992 when he was ill. He died three days later and his half share passed to their children under his will. Eventually they received distributions under his will in various amounts, $25,000 at the most, some significantly less. The house was sold in October 1993 for $332,000 and Mary Francica was entitled to half of this, $166,000 at the most.

26 It is quite feasibly possible that when she settled the purchase of 1471 Botany Road on 27 April 1994 Mary Francica had enough money from her own resources to pay the whole price of $285,000; the discernible possible resources being $125,000 half share in Catherine Street and $166,000 from the Clovelly sale. There are other moneys she might have had; she could have had savings and she could have had money left from Hillsdale.

27 Mary Francica received money under a Compensation Court award made somewhat later, in May 1994. She had been working for many years. Under the Compensation Court award she received a redemption sum of $21,800 and other sums totalling $12,802.50. At a later time in March 2000 she invested $48,584.23 in a retirement savings account. There is nothing implausible about the hypothesis that she may have paid for 1471 Botany Road out of her own money. But the onus of proof is the other way.

28 These circumstances of availability of funds are part of the basis of my not accepting the plaintiff’s case that he paid anything towards the house at 1471 Botany Road.

29 Mary Francica inherited a property in Holsworthy from a son who died on 27 February 1997. Later she transferred this house to the defendant who now lives in it. This transaction brought her no money. The defendant has a large mortgage debt as he had to pay off his late brother’s mortgage.

30 The plaintiff has not succeeded and I will go on to say not only has he not shown he made a contribution but the probability is that there was some agreed division in 1994. Each took some proceeds of Catherine Street, added other funds from somewhere and bought a house for himself or herself. The details cannot be known but this is probably what happened. The circumstance of their having spent some years as co-owners and then breaking that up and making other arrangements in which each owned a house for himself or herself is rather compelling. He no more owned a share of hers than she owned a share of his. This claim fails.

31 The will Mary Francica made on 28 January 2005 when terminally ill is a clear indication of her own attitude to her relationship with the plaintiff. She described him as “my good neighbour and friend” and gave him $10,000. The contrast with her attitude to him in 1992 when her will gave him all her assets is very strong, and the word “neighbour” is significant. It is clear and it is not disputed that Mary Francica and the plaintiff lived together in a de facto relationship for some years. The plaintiff alleges that this continued until her death with one short interruption. The defendant alleges that it terminated in 1996. The evidence supports termination about 2001 or 2002 but there is no certitude about the date. According to the defendant’s case the relationship from thereon was at the highest as described by Mary Francica in her will, “good neighbour and friend”.

32 The relationship began in about 1986 and she was then separated from her husband. The plaintiff and she met at the South Sydney Juniors Club which was the scene of their social life. Each was working full time. First they lived in premises rented by the plaintiff at Zetland and after six months they moved to a house which the plaintiff bought in Zetland. They lived there until they bought Catherine Street and moved there in December 1988. Then in April 1994 Mary Francica bought the house at 1471 Botany Road and they moved to live there. In September 1996 the plaintiff bought the house at 1447 Botany Road and he rented it out for about two years. Since then it has always been available for him to use, that is for six or seven years before Mary died. It is very unlikely that he kept it empty all this time. He made rental income from the Belmore house so he knew what that was, and he made income from his Botany Road house. Not carrying on renting the house out is a circumstance suggesting that he was doing something else with it.

33 Mary Francica and the plaintiff shared their social life principally at the South Sydney Juniors Club. They took three journeys to Malta to visit family there. These journeys occurred before the move to Botany. They made wills in each other’s favour but otherwise they did not share economic resources. They did not have common bank accounts or investments or other resources. Their co-ownership of Catherine Street, Leichhardt ending in 1994 was their only common economic activity.

34 The plaintiff did not know Mary Francica’s affairs generally, how much savings she had or how or where they were all invested. He knew some of this. He did some banking on her behalf. After her death he had a bank book of hers in his possession and he made inappropriate difficulties about giving it to her executor. Something similar happened with respect to her motor vehicle and he made inappropriate difficulties about delivering it up and when he did he did not deliver the keys. There was also some difficulty in getting her certificate of title from him but eventually it was surrendered. His conduct in this respect does not reflect well on him.

35 Mary Francica disapproved of the plaintiff’s life long gambling habit and she spoke to her children of his gambling and referred to the TAB as “his office”. He was to be found there betting on the horses practically every day it was open.

36 They shared household expenses. They did not ever share the care of children and never shared any real responsibilities at all. There were no real burdens to the relationship except the ordinary responsibilities and duties that come with living in a household and the contemporaneous benefits of this, comfort and convenience, getting the housework done, shopping, driving each other about, keeping the house in order and so forth. They each contributed to household expenses. The burdens, such as they were, and the benefits of the relationship came and were borne and enjoyed contemporaneously and then they passed, building up no continuing contribution by either to the assets or, significantly, to the future welfare of the other.

37 As the plaintiff explained in evidence they separated “for several months” approximately in 2004 or 2005. He explains that by saying at par 31 of his affidavit of 21 August 2007

“The deceased and I separated for several months approximately 2 – 3 years ago. At that time the deceased said to me words to the effect: ‘I want to get the single pension’. I moved into my property at 1449 Botany Road, which was purchased on the sale of 33 Yagoona Street ….”

38 There are passages in his oral evidence which also deal with this. At transcript p 45 he was asked in cross-examination at line 34:

“Q. August 1996. I suggest to you you were not in a de facto relationship at that time and one of the reasons you purchased that property is that you and the deceased were still friends and you wanted to live close to her?

A. WITNESS: To get the pension, that’s what it is, we have the separation.”

A little later at transcript p 46 - 47 I asked him a question to establish who lived in the house at 1449 Botany Road after he bought it and he said at transcript p 46 – 47


“Q. When you bought 1449 Botany Road and you paid for it did anybody live in it?
A. WITNESS: Yes. I think I was renting.
A. INTERPRETER: You rented it to a couple.
A. WITNESS: To a couple, yes.

Q. How long did that go on?
A. INTERPRETER: Maybe two years. I do not recollect exactly.
A. WITNESS: Not exactly.

Q. Well, after you rented it for maybe two years did anybody live in it?
A. WITNESS: No because, no, after she wanted to take the pension, I wanted to take the pension so I go live in there and she live in, but still when she get sick I

Q. Did you live in 1471 Botany Road for a time?
A. WITNESS: Yes, yes.

Q. When was that?
A. WITNESS: When she was sick.

Q. No. When did you live in it?
A. WITNESS: I date I don’t know. Before she died. “

39 He was then asked how long he lived in the house and he said he could not remember. He also said words to the effect that it would not have been as long as two years before she died. It is very difficult to put an exact time on this but overall I understand the meaning of his evidence to be that he rented the property out for about two years but then went and lived in it until a period not long before Mary Francica died when he went to live at 1471 Botany Road. Her illness is first referred to in the medical records as being about October 2004.

40 As well as I can understand his evidence it means that there was a period which I infer was some years when he did not live at 1471 Botany Road but that he went back to live there when she was ill. Underlying this evidence, each of them did qualify for and get the full aged pension, which is not available to couples, and it would only have been available on the basis they had separate households and dwellings. He qualified and got the full aged pension and he still gets it.

41 From a number of different sources it is very probable that he gave his address at 1471 Botany Road, and at one time that was his address. He got his full aged pension on the basis that he had his own separate household in a different house and she got hers on the same basis. The probable date from which they lived separately is a date about 1998 or 1999 although precision is not clear. In my finding the separation continued for some years, indeed it never ended.

42 On the other hand it is plain that after he went to live in his own house he spent a great deal of time in the company of Mary Francica and at her house. They were recognised and regarded as a couple, not necessarily a de facto couple, by their neighbours, the Byrnes. Indeed they were recognised as a couple before the separation by Mary Francica’s children.

43 The Byrnes lived next door and they were in a position to make daily observations about the comings and goings of the plaintiff to her house, but they were not in a position where they had any particular motive or reason to make a close observation and inquire into matters and seriously address or define the situation, and they did not do so. They were not aware that Mr Zahra owned the house a couple of hundred metres away. This, to my mind, shows that their observations were not particularly close or acute. If they had really concerned themselves with the business of who came and went next door and why they would certainly have found out about his own house. They were not, to my observation, intrusive people. Their impression favours the plaintiff’s case, that is he and Mary Francica appeared to be a social couple, but this is far from conclusive.

44 Mary Francica’s life and the plaintiff’s life were not fully intertwined. There was no economic interdependency. Generally their interaction, so far as there was economic interaction, was superficial, limited to housekeeping and other interactions of a pleasant social life. Mary Francica complained to her children about his gambling and claimed to have given him significant sums of money.

45 The plaintiff claims that after she was diagnosed with cancer (and I interpose it was lung cancer but he thinks it was breast cancer), he moved back into 1471 Botany Road to assist her to care for herself. I find that he gave her significant care particularly in the last three months of her life. He helped her in acts of daily living and drove her in her own car to medical and hospital appointments. He was very helpful day by day and fulfilled amply the description in the Will of “good neighbour and friend”. I do not accept that he moved back in, because her children saw little of him there when they visited, and what they did see was consistent with his being a caring friend and helper who lived somewhere else. Their evidence does not bear out that he still lived there or that they were a couple. That clothes of his were left to be washed is not a demonstration that he had given up his habitation 200 metres away; nor in his staying there late to watch television.

46 A number of circumstances appear to me to bear out the finding that the relationship in the last days of her life including her illness was the one she spoke of in the will. The terms of the Will support this. There were strong motivations on both of them not to be a couple so that they would get the full aged pension on the basis they were not a couple. It is also borne out by his actually owning and having available his own house 150 or 200 metres away and not renting it out despite his experience with rental income, and keeping it available for himself over a number of years. It is also borne out by complaints made by Mary to her children about his conduct, showing that she had a disenchanted view of him. The plaintiff had relatively little interaction with the children and they saw little of him. This continued during her last months although they saw a little more of him then.

47 Mary Francica always had a good relationship with her son Charles Paul the defendant, however she did not tell him her financial affairs. She told him some time in about 2002 (referring to his affidavit of 29 January 2009 par 13):

“At about the time the Plaintiff left my late mother’s home, I recall that she said to me ‘I’m not prepared to put up with Karmelo’s gambling habits any longer and we have agreed that he should leave me and live in his own home, so that at least we can remain friends.’”

This statement is admissible to prove the facts stated and not merely to prove that Mary Francica made the statement having regard to the Family Provision Act s 32. The same applies to the statement in her Will. I accept his evidence that she did say this. I find it was true that the plaintiff and Mary Francica acted on the agreement she spoke of, that is he left to live in his own home so that they could at least remain friends, and that their de facto relationship came to an end several years, at the latest, before her death.

48 Mary Francica told this to her daughter Joanne Brewin (Ms Brewin’s affidavit at par 8:

“I recall during these visits my Mother said to me, ‘Charlie gambles a lot. I have made provision for him that he’s going to get $10,000 when I die. He spends his time going to the St George Juniors Club to gamble on horses and dogs.”

I accept this evidence is true and that Mary Francica did make that statement and that it shows her attitude to the plaintiff during the last days of her life.

49 The evidence of her son David Francica includes the following passage at par 11 (and the evidence refers to the photograph number 6 in Ex D which was taken on the birthday of her grandson Nathan on 6 August 2001):

“On or about the time that photograph 6 was taken I recall my late Mother saying to the Plaintiff in my presence, ‘You have your own house now, you have your own place rented and its about time you went and lived in that house, it’s about time for you to make your own arrangements to look after yourself’.”

I accept that that statement was made and that it expressed her attitude at the time.

50 In the same paragraph David Francica also said:

“At about the time of that conversation I recall my late Mother said to me, ‘I have a document here which Charlie wants me to sign. Would you read it for me?’ My Mother was not able to read or write English. I then read the document in the presence of the Plaintiff and a friend of his, whose name was Ron. After I read the document I said to my mother, ‘Mum, they want to get access to your bank account.’ She said. ‘No bloody way. He has his own money and I have mine, and we have always had separate bank accounts and we have our own homes’.

Both the Plaintiff and his friend were present during that conversation. That conversation took place in the kitchen of my late Mother’s house in Botany. I then said to the plaintiff, ‘What are you trying to do getting access to Mum’s bank account, you are trying to take advantage of her because she cannot read or write.’ At that time I observed that the plaintiff went red in the face and he then walked out of the kitchen into the backyard”.

51 David Francica’s evidence goes on to speak of something he said to the friend, Ron, who he identified in evidence as Ron Pisani. Mr Pisani gave evidence on affidavit denying that these events took place. He was not cross-examined, so the evidence of Mr Pisani was not challenged by defendants’ counsel in the usual way. However defendants’ counsel had put these passages to the plaintiff himself in cross-examination. Commencing transcript p 50, line 41 counsel put the part of par 11 about it being time for the plaintiff to make his own arrangements, and he denied that she ever said that. Counsel went on, transcript p 50, line 49 - transcript p 51:

“Q. And I put to you at about the time of that photograph, the same time, there was another conversation during which she said to David:

‘I have a document here which Charlie wants me to sign. Would you read it for me? He says she was not able to read it and after she tried to read it in your presence and a friend named Ron he said, `Mum, they want to get access to your bank account,’ and she said, `No bloody way.’

Do you recall being present when that conversation took place?
A. WITNESS: Yeah, I remember that time, yes.

Q. Yes?
A. WITNESS: And they tried to cheat, Charlie, because they never, he was helping me, because I trusted him, because I can’t read, and I can’t this and I can’t that, and they tried to cheat because--“

Then the evidence was briefly interrupted, and at transcript p 51, line 24 I asked a question:

“Q. I have to ask you is it correct that David said to his mother, ‘Mum, they want to get access to your bank account’. And she said, ‘No bloody way,’ is that right?
A. WITNESS: Yeah, I remember that.
A. INTERPRETER: Okay. I remember.
A. WITNESS: Because they try to cheat her.”

52 In substance then the plaintiff’s own evidence confirmed what David Francica said in par 11. It is not surprising that the defendant’s counsel did not trouble to cross-examine Mr Pisani who had denied it; indeed, defendant’s counsel did not greatly concern himself with what Mr Pisani had said in his affidavit. In view of what the plaintiff himself said, defendant’s counsel was not called on by any principle of fair conduct of counsel, or prudence, or completeness of advocacy, or anything else to take any notice of Mr Pisani’s evidence.

53 In my finding, the accounts of events given by David Francica in par 11 are true. It follows from that that there was an event in which the plaintiff sought to have Mary Francica sign a document which would give him access to her bank account and she refused, with profane emphasis.

54 Relationships between Mary Francica’s children and the plaintiff are poor and the children are not objective witnesses, but I find their evidence much more reliable than the plaintiff’s evidence. The plaintiff’s claim was put as a claim by a person who was living in a domestic relationship at the time of the deceased person’s death and an eligible person under par (a)(ii) of the definition of “eligible person” in s 6(1) of the Family Provision Act 1982 (which applies in this case notwithstanding its repeal). There was no attempt to advance a case in which he was living in a domestic relationship as defined in any other way such as a person once a dependant under par (d). Par (c) of the definition of “eligible person” which refers, among other people, to a former husband of a deceased person does not have a parallel provision extending eligibility to a former de facto partner of a deceased person. His claim for provision out of her estate then depends on showing that the de facto relationship continued until the time of her death. I have mentioned several other conceivable branches of the definition of eligible person in an endeavour to be complete, but they were not advocated, and on the evidence before me I see no ground on which any of them reasonably could have been.

55 The plaintiff owns his own house. He receives the full age pension. He has resources to continue living at the standard at which he has lived for many years since he gave up renting out property in 1998, and not much different to his standard of life before that. He owns an unencumbered house worth $650,000. He has no need for another house. Dependence by either on the other was never an aspect of their relationship. He has no need for education or advancement in life. Further provision for his maintenance would carry him above his long established standard of life, the standard he followed during the last years of the deceased’s life. He could help himself, I suppose, if he restrained or gave up his life long gambling habit. The de facto relationship ended in the face of a wish by both for a full age pension, and he has that. The proverb said: “Love laughs at locksmiths”, but obviously it treats the full age pension with respect. He has a testamentary gift of $10,000, a considerable recognition of his assistance and good conduct towards her in the last months of her life. Giving him this was more than Mary Francica could be regarded as having any moral obligation to do for him.

56 In my finding he is not an eligible person, but if he were it could not be said that he had been left without adequate provision for his proper maintenance.

57 If the facts were such that the case and my consideration did go further, the plaintiff’s claim would be outweighed by the moral obligations of Mary Francica to her children which she recognised almost as fully as she could in her Will. Some of her children had poor relationships with her at times, but not all the time. They did nothing to forfeit parental provision under her Will. They are all in poor circumstances, ranging from stretched circumstances to desperate poverty. Each of them has some significant economic and physical disadvantage and none of them is distinguished in their natural talents; several of them cannot read; none of them can earn much; none of them is well off.

58 David Francica has a very restricted earning capacity as a result of earlier injuries and perhaps of his general life circumstances. He is fortunate that his wife inherited property in which they both live, which is of significant value, his estimate being $1,100,000, but otherwise there is nothing favourable in his affairs at all. The defendant, Charles Francica, owns a business. He has suffered a work injury and is on light duties. Perhaps he will get over this. He owns a house, but he has what is in the circumstances of his life and earnings a large mortgage which will always be difficult for him to cope with.

59 The other son and the daughters are in extremely severe economic circumstances. The daughters are weighed down with large mortgages and generally adverse circumstances and unable to read. George Francica is in the most desperate condition. Having regard to his state of health and entire lack of significant resources, he is reduced to living in a Housing Commission house by the grace of the tenant who is his de facto, and to tinkering with old cars to pass his time. He has no earning capacity whatever and never will.

60 Even if the plaintiff had a case, I would not have been prepared to take assets away from the children in their struggles with disability, debt and adverse circumstances. Only the defendant is better off than the plaintiff himself yet he has a large mortgage debt and adverse financial circumstances. If the plaintiff had passed the tests in the Family Provision Act, I would not as a matter of discretion have awarded him any provision at the expense of Mary Francica’s children.

61 My order is: I give judgment to the defendant with costs. The costs order made by Smart AJ on 2 February 2009 continues in effect. I order that the defendant’s costs be assessed on the indemnity basis in respect of costs incurred on or after 21 November 2007 with the exception of costs dealt with by the order of Smart AJ.

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