A v A

Supreme Court of NSW|2017-04-21|Before: Lindsay J

o v Bostin [2005] 221 CLR 191 Texts Cited: - Category: Principal judgment Parties: Plaintiff: DNF Defendant: NTS Representation: Counsel: Plaintiff: K Morrissey and M Bridgett Defendant: M Painter SC and R Bianchi

Solicitors: Plaintiff: Turner Freeman Defendant: Wills and Estates Legal Service File Number(s): 2015/00291238

INTRODUCTION

By a summons filed on 6 October 2015 and amended on 10 June 2016, the plaintiff applies, within the time limited by section 58(2) of the Succession Act 2006 NSW, for family provision relief, under Chapter 3 of the Act, from the estate of the late MPS ("the deceased"), claiming the status of an "eligible person", with standing (under section 59(1)(a) to make such an application) by virtue of section 57(1)(f) of the Act.

THE DECEASED AND HER ESTATE

The deceased was born in April 1943, and died at Manly on 6 October 2014, aged 71 years.
She died intestate, without family other than her brother NTS (the defendant), and his family, residents of Western Australia. Her brother was six years her junior. He was born in November 1949. He is now aged 67. He is in ill-health (suffering Parkinson's Disease), in retirement.
Letters of Administration were granted to the defendant, by this Court, on 5 February 2015.
By operation of section 129(1) of the Succession Act, and subject to any orders made in these proceedings, the defendant is beneficially entitled to the whole of the deceased's estate under the "intestacy rules" for which Chapter 4 of the Act provides. She left no spouse; her partner of many years, JWJ, died in April 2012. She left no parent; both predeceased her. Her brother, the defendant, is her nearest surviving relative. Their elder brother, VAS, died in 2003, two years after their mother.
The respective estates of the deceased's mother and brother were both administered as intestate estates. It is not unrealistic to assume that the deceased was familiar with the general nature of an intestacy, and the prospect that, if she died without a Will, her estate would pass to the defendant, her surviving brother. A conversation with the deceased, to which her solicitor has deposed, expressly confirms that assumption.

THE SIZE AND COMPOSITION OF THE DECEASED'S ESTATE

For the purpose of these proceedings the parties agree that the estate of the deceased can be valued, conservatively, at approximately $2 million.
A residential property owned by the deceased (in Woy Woy) having been sold by the defendant (in August 2016) in administration of the deceased's estate, the property presently comprising the gross estate can be identified, and attributed an estimated value, summarily as follows: 1. 3 home units in Balgowlah, with a total estimated value of approximately $1.825 million; 2. funds held in bank accounts (including the proceeds of sale of the Woy Woy property) totalling approximately $764,000.00; and 3. 500 Ordinary shares in a public company, with an estimated value of $2,345.00.
An estimation of the current value of the deceased's net estate requires allowances for the following liabilities: 1. strata levies totalling $147,636.77 inclusive of GST, recently imposed on the Balgowlah home units to fund remedial works; and 2. a liability for (2016) income tax not presently quantified.

THE COSTS OF THE PROCEEDINGS

Without investigation (not presently necessary), the parties' costs of these proceedings appear to be exorbitantly high. The plaintiff's solicitor estimates the plaintiff's costs at about $135,000 inclusive of GST (on a solicitor-client basis) and about $85,800 inclusive of GST (on the ordinary basis), with a $50,000 gap between costs that might be recoverable from the deceased's estate and the plaintiff's liability to his lawyers. The solicitor for the defendant estimates the defendant's costs (on the indemnity basis) at about $292,800 inclusive of GST.
The defendant's counsel invited the Court to allow for the fact that, until 6 May 2016 or thereabouts, the plaintiff was unrepresented, a litigant in person, and the conduct of the proceedings is said to have been complicated.
Another factor that might have to be added in order to explain the costs incurred on both sides of the record may be the difficulty of dealing with the plaintiff - either as a client or as an adversary - a person whose mental health is at best precarious.

THE FACTUAL MATRIX OUTLINED

The plaintiff claims to have known the deceased as a friend since about 1979, at about which time he claims to have had a sexual relationship with her and her partner JWJ, as a threesome, over a period of around six months. After that time, the plaintiff says, he and the deceased substantially went their separate ways until a chance meeting in August 2012. In the interim, he established a long term same-sex relationship with BW, who died in November 2009.
At the time of their meeting in August 2012 the deceased was terminally ill, expecting death, and commonly in pain. She was living in a Manly hotel (one of a number of such residences, over time), ostensibly pending arrangements being made for more permanent accommodation, or death, whichever should first occur.
The plaintiff is and has been for many years on a disability pension, the foundation for which, I infer, must be found in the state of his mental health. He says that, but for his mental health, he is and was between 2012-2014 in reasonable physical condition.
In August 2012 he was living in a small rental cottage in Manly. The plaintiff says that, despite the deceased's ill health, he and she resumed a sexual relationship which continued, within constraints associated with her ill health, and with diminishing frequency, until her death. A natural scepticism about that cannot but be noticed.
However, more germane to a determination of the plaintiff's application for family provision relief, he claims to have served the deceased as her carer, to have lived with her (albeit with each of them, for the most part, maintaining separate residences), and to have been substantially maintained by her, between their chance meeting in August 2012 and her death in October 2014.

THE NATURE OF A CLAIM TO BE AN "ELIGIBLE PERSON" UNDER Section 57(1)(f)

Until shortly before the hearing of his application, the plaintiff claimed to be an eligible person, not only by virtue of section 57(1)(f) of the Succession Act, but, primarily, by virtue of section 57(1)(b) as "a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death". Upon inquiry at the commencement of the hearing, counsel for the plaintiff expressly abandoned any reliance on section 57(1)(b) and confined the plaintiff's case to reliance upon section 57(1)(f). The plaintiff does not now claim to have been living with the deceased in a de facto relationship at the time of her death. The defendant does not contend that he was.
Section 57(1)(f) confers the status of an " eligible person" on "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death".
The concept of a "close personal relationship" is defined, for the purpose of section 57(1)(f), by sections 3(3) and 3(4) of the Succession Act. Those subsections are in the following terms: "(3) For the purposes of this Act, 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)."
Although highly critical of the quality and continuity of any care provided by the plaintiff for the deceased, the defendant accepts that, but for three impediments, the plaintiff might be able to bring himself within section 57(1)(f) as informed by sections 3(3) - 3(4).
On the defendant's case, those impediments are: First, the plaintiff and the deceased were never "living together" within the meaning of section 3(3); secondly, payments made by the deceased to or for the benefit of the plaintiff during her lifetime (or, perhaps more accurately, expectations that such payments would be made) were such as to activate the exclusionary provision found in section 3(4)(a); and, thirdly, the plaintiff had substantially abandoned the deceased towards the end of her life, so that he cannot be said to have been living in a close personal relationship with her at the time of her death, as required by section 57(1)(f).
In submissions bearing upon the proper construction and operation of sections 3(3) - 3(4) of the Succession Act, the plaintiff relied upon my judgment in Skarica v Toska [2014] NSWSC 34 (which specifically considered those provisions) and the defendant relied upon the judgment of Kunc J in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 (which considered analogous provisions in sections 5(1)(b) and 5(2) of the Property (Relationships) Act 1984 NSW), judgments said to be at variance in their consideration of section 3(4)(a) of the Succession Act.
The parties are agreed that the concept of "living together" in section 3(3) of the Succession Act does not necessitate the existence of a single residence: Popescu v Borun [2011] NSWSC 1532 at [51]; Bayssari v Bazouni [2014] NSWSC 910 at [43]. They accept that people can "live together" in more than one residence and that people may, jointly or severally, have more than one home which, from time to time, they separately occupy. Nor is it a prerequisite of "living together" that people spend all of their time together: Amprimo v Wynn [2015] NSWCA 286 at [77].
The concept of "living together" in the definition of "close personal relationship" is adaptable to the reality of domestic life in this respect, constrained not by a requirement that people live together "as a couple" (Hayes v Marquis [2008] NSWCA 10 at [75]-[76]), but by a relationship that is close, personal and attended by provision by one or each of them to the other with domestic support and personal care (Dridi v Fillmore [2001] NSWSC 319 at [102]-[104]; Barlevy v Nadolski [2011] NSWSC 129 at [25]; Holden Francis Frisoli v Natasha Anastasia Kourea [2013] NSWSC 1166 at [45]-[47]).
In the present case, the fact that the plaintiff and the deceased held themselves out to the public as "nephew" and "aunty" might reasonably be thought to have been an impediment to a finding that they were "living as a couple" (an element of a "de facto relationship" required by section 21C(2)(a) of the Interpretation Act 1987 NSW with an emphasis, reflected in section 21C(3)(i), on the reputation and public aspects of a relationship), but it is not inconsistent with the idea of persons who, living together, provide, within a private relationship, domestic support and personal care.
The concept of "living together" has a dimension that focuses on the quality of a relationship rather than mere physical proximity: Hayes v Marquis [2008] NSWCA 1 at [75]-[83]. Ordinarily, it might be expected to be associated with the concept of "family" in its broadest sense, importing social intimacy rather than a formal, blood tie (Skarica v Toska [2014] NSWSC 34 at [39]-[43]) or sexual relations (Amprimo v Wynn [2015] NSWCA 286 at [77]) as a prerequisite.
In Skarica v Toska [2014] NSWSC 34 at [37] I noticed that, whereas section 3(4)(a) of the Succession Act uses the expression "fee and reward" , section 5(2)(a) of the Property (Relationships) Act 1984 uses the expression "fee or reward" and I remarked that nothing appears to turn on the distinction. I proceeded upon an assumption that section 3(4)(a) can be read, more naturally and without harm to the Succession Act, as if it said "fee or reward". Neither party to these proceedings challenges that assumption. Accordingly, I adhere to it.
I do not myself apprehend that there is any substantial difference between my construction of section 3(4)(a) of the Succession Act in Skarica v Toska [2014] NSWSC 34 [2014] NSWSC 34 at [45] -[47] and Kunc J's construction of section 5(2)(a) of the Property (Relationships) Act in Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [360] - [379] generally or, more particularly, at [374] - [379].
Unless (contrary to my assumption) significance must attach to the word "and" in section 3(4)(a) of the Succession Act, and the word "fee" must be taken as a limitation on the breadth of the word "reward", I do not read section 3(4)(a) as confined to an arrangement legally enforceable, whether in contract or otherwise. I agree that substantial importance attaches to the word "for". I agree that the text of the legislation has primacy over its exposition. I agree that the legislation must be read as a whole and in a manner designed to give effect to its purpose. None of these propositions are controversial.
It is particularly important in family provision litigation not to confine the text, given the many different types of family relationships to which the Succession Act must respond.
In Saravinovksa v Saravinovski (No 6) [2016] NSWSC 964 at [376] - [377] Kunc J wrote the following, which I am quite content to adopt: "[376] … [A] party wishing to rely on section 5(2)(a) [of the Property (Relationships) Act] must satisfy the Court that there is a direct connection in the nature of an immediate and intentional exchange of the provision of domestic support and personal care for the purpose of eliciting the identified fee or reward. So understood, such an arrangement might be seen as the origin of, or motive for, what would otherwise be a close and personal relationship under the [Property (Relationships) Act]. It is to be contrasted with the situation where the provision of domestic support and personal care is an indicium or incident of the close personal relationship. [377] It is common human experience that a close personal relationship will involve an expectation of mutual benefit and support in each party. An example of such a benefit is the provision of free accommodation to the other person in the relationship who provides domestic support and personal care. However, while the free accommodation is undoubtedly a 'reward', where it and the provision of domestic support and personal care are manifestations of the close personal relationship rather than the immediate and advised motivation for it, section 5(2)(a) will not be engaged."
The contrast his Honour drew is not unlike the contrast I drew, more summarily, in Skarica v Toska [2014] NSWSC 34 [2014] NSWSC 34 at [45] between a "domestic" arrangement and a "commercial relationship" and, at [46], between "an essentially private relationship" and a "business". In each case attention is given to characterisation of the dominant, causative factor(s) in the provision of domestic support and care: Is it, or are they, found in the parties' personal relationship or in the prospect or fact of material gain? A dominant commercial imperative in the provision of domestic support and care might reasonably be seen as inconsistent with the concept of a family provision order.
In exposition of sections 3(3) - 3(4) of the Succession Act such contrasts are difficult to avoid, particularly as the expression "close personal relationship" is defined, primarily, by reference to the same set of words, qualified by requirements for "living together" and provision of "domestic support and personal care", and coupled with words of exclusion. There is an element of circularity in the definition which invites an endeavour to draw boundaries between what is, and what is not, within its contemplation.
The concept of "living together" is essentially relational; not constrained by formalities, though it might be attended by formality; not constrained by geography, though it might ordinarily be expected to have a geographical dimension; not constrained by a physical, or sexual, relationship, though that too might be present. It might be viewed as involving a quasi-family relationship, though care needs to be taken not to substitute expository gloss for the legislative text.
Elusive though the concept the subject of definition may sometimes be, its exposition may be informed by reflection on its broader legislative context. It is specifically associated, in the context of chapter 3 of the Succession Act, with the provision of "domestic support and personal care" (a central touchstone) in circumstances in which it is conceivable that, whether judged by reference to the standard of "a just and wise testator" (Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19-20) or "community standards" (Andrew v Andrew (2012) 81 NSWLR 656), a court might conclude that "there are factors which warrant the making" of an application for family provision relief (section 59(1)(b)) and that, ultimately, such provision "ought" to be made for the maintenance, education or advancement in life (section 59(2)) of the applicant.
The interconnectedness of these concepts viewed as a whole, as they must be, is reinforced by the settled meaning attributed to the expression "factors which warrant the making of" an application found in section 59(1)(b). Such factors are those which, when added to facts which render the applicant for relief an "eligible person", would give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased: Re Fulop Deceased (1987) 8 NSWLR 679 at 681; Churton v Christian (1988) 13 NSWLR 241 at 252 A-E.
By command of section 60(1), factors identified in section 60(2) as potentially relevant to a determination whether to make a family provision order, and the nature of any such order, are expressly identified as potentially relevant, also, to a determination whether an applicant for family provision relief is an "eligible person".
It is not difficult, in this context, to see why practitioners customarily resort to language suggestive of a "moral duty" to make testamentary provision and the Court customarily both cautions against the use of such language (Andrew v Andrew (2012) 81 NSWLR 656 at [8]-[11]) and, just as readily, itself slips into language no less loaded in making the "evaluative" judgements required of it by Chapter 3.
A conscious effort is required in each case to consult the text of the legislation and the facts of the particular case bearing upon its application. It is the text of the legislation, not any expository gloss it calls forth, that must be consulted afresh in each case. Contrasts of the type found in both Skarica v Toska and Saravinovksa v Saravinovski (No. 6), however helpful they may be, cannot provide a substitute for the legislative text. Not all cases conform to the binary form of a contrast made to illustrate the operation of the text in a particular setting.

THE LEGISLATIVE FRAMEWORK GOVERNING THE PLAINTIFF'S APPLICATION

Given the textual interconnectedness of those provisions, and the nature of the judgements required of the Court, in relation to each provision and overall, it is not surprising that, with nuanced shifts responsive to the language of each provision, the parties reiterated their respective case theories at each of the legislative hurdles the plaintiff must overcome to obtain a grant of relief under chapter 3 of the Succession Act; namely: 1. Section 57(1)(f), read with sections 3(3), 3(4)(a) and 59(1)(a); 2. Section 59(1)(b); 3. Section 59(1)(c); and 4. Section 59(2), and in consideration of the factors specified by section 60.
The terms of the other provisions having been sufficiently set out earlier, I here set out the terms of sections 59(1)(c), 59(2) and 60, so far as material: "59 When family provision order may be made (1) The Court may … make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (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. (2) The Court may make such order for provision out of the estate of the deceased person 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. … 60 Matters to be considered by Court (1) The Court may have regard to the matters set out in subsection (2) for the purpose of determining: (a) whether the person in whose favour the order is sought to be made (the "applicant" ) is an eligible person, and (b) whether to make a family provision order and the nature of any such order. (2) The following matters may be considered by the Court: (a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship, (b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate, (c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered, (d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate, (e) if the applicant is cohabiting with another person-the financial circumstances of the other person, (f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated, (g) the age of the applicant when the application is being considered, (h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant, (i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate, (j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person, (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so, (l) whether any other person is liable to support the applicant, (m) the character and conduct of the applicant before and after the date of the death of the deceased person, (n) the conduct of any other person before and after the date of the death of the deceased person, (o) any relevant Aboriginal or Torres Strait Islander customary law, (p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered."
The defendant's case focused attention on section 60(2)(m) in relation to alleged conduct of the plaintiff described by the defendant (not accurately, but in an allusion to section 3(2) of Testator's Family Maintenance and Guardianship of Infants Act 1916 NSW, long since repealed) as "conduct disentitling".
Section 3(2) of the 1916 Act provided that: "[The] Court may attach such conditions to [an order for provision] as it thinks fit, or may refuse to make an order in favour of any person whose character or conduct is such as to disentitle him to the benefit of such an order."
In In re the Will of FB Gilbert (dec'd) (1946) 46 SR (NSW) 318 at 321 Jordan CJ described "disentitling conduct", in the context of section 3(2), as "character or conduct relevant to the purposes which the [1916] Act is intended to serve, for example, misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default".
No provision comparable to section 3(2) was included in the Family Provision Act 1982 NSW upon repeal of the 1916 Act. Nor is there any comparable provision in chapter 3 of the Succession Act, which replaced the 1982 Act. Section 9(3)(b) of the 1982 Act was in terms substantially the same as section 60(2)(m) of the Succession Act. Nevertheless the concept of "conduct disentitling" lives on in popular imagination.
Analytically, the concept needs to be approached with caution. This is particularly so in an environment (commonly encountered these days in claims for family provision relief by "adult children") in which the relationship between a claimant and a deceased person may bear the marks of estrangement. Section 60(2)(m) of the Succession Act has a broader, more flexible focus than section 3(2) of the 1916 Act. It does not employ the word "disentitling". It appears in the context of legislation that requires the Court to consider the totality of a relationship: Fulton v Fulton [2014] NSWSC 619 at [395]-[398]; Hinderry v Hinderry [2016] NSWSC 780 at [120]-[124]; Page v Page [2016] NSWSC 1218 at [112].
Accepting that the defendant's case focuses attention on section 60(2)(m), counsel for the plaintiff invited the Court to give close attention also to paragraphs (a)-(d) and (f)-(l) as well as the catch-all paragraph (p). Only paragraphs (e), (n) and (o) can be disregarded. In short, the Court is here called upon, as in section 59, to have regard to "all the circumstances of the case" This, I trust, I do (deliberately, if, at times, only implicitly) upon consideration of each element required to be proved by the plaintiff in support of his case.

THE PLAINTIFF'S CASE

The case for which the plaintiff contends (and, in substance, has made out) can conveniently be summarised by paraphrasing his counsel's written submissions, lightly edited: "[8] There is evidence in the plaintiff's affidavits, which if accepted, will establish he is an eligible person. There are factors warranting the making of his application, because he is a person who would naturally be regarded as [an] object of the deceased's testamentary bounty, as she regarded him as next of kin…. He is in a perilous financial position. He owns nothing of any value, he is in receipt of a disability pension, and is presently sleeping in a goods storage facility, or in a tent in public places. [9] [The plaintiff and the deceased] had known each other for many years which included a period of intimacy, around 40 years ago. [10] In approximately August 2012, after his same-sex partner died, and her husband [sic] died, they resumed a close and intimate relationship. At the time, [the plaintiff] was renting a flat at [Manly]. [The deceased] was living in a room in [a nearby hotel]. She had cancer of the lymphatic system, and was immobile. She was dependent for income on the rent from her properties. From then, until the time of her death, they spent most of their time in each other's company, including during her hospital admissions. She had no one else in her life. Her brother [the defendant] had lived in Perth since 1981, and they had limited contact. [11] [The plaintiff] spent his days and part of his nights caring for her, at various locations, including… [a] motel [in] Frenchs Forest, where she died in a unit. [12] During the relationship, she had approximately 12 admissions to various hospitals and institutions, and listed [the plaintiff] in 10 of those as her next of kin. He was apparently her only visitor, spending large periods with her, including sharing meals, provided by the hospitals. [13] As her health and mobility declined, she was almost entirely dependent upon him. She refused care offered to her from the hospitals, social workers and medical professionals, and made it clear to him, and her solicitor… that she would not go into a nursing home.… At times she refused to allow him to get attention for her, because of that concern. [14] [The plaintiff] is 65 years of age, has never married or had children, is unemployed, lives alone, and has been in receipt of a disability pension for his psychiatric conditions since 1993. [15] … He has not worked regularly since 1993, except for an eight month period between September 2013 and April 2014, when he was employed under contract as a business analyst.… [16] Though tertiary educated, he is unemployed. He has no assets of any value. His present liabilities total approximately $57,000.00. His income disability pension is exceeded by his modest living expenses.… [17] His needs… include security of accommodation. [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. [19] The evidence discloses a private, reclusive and unorthodox personal relationship between [the plaintiff and the deceased], which was geographically proximate, familial, distinguished by a special friendship, (perhaps love), and attended by the provision of support, care and attention by one to the other…. [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 undoubtably [the deceased's] residence. Although she owned three home units in Balgowlah [and other premises] she chose not to live in them. [21] The concept of 'living together' has an element that focuses on the quality of the relationship, rather than mere physical proximity…. That quality existed between [the plaintiff and the deceased] because of the very intimate and close nature of their personal relationship. [22] They each provided the other with 'domestic support and care'. He provided it to her, and to some extent she provided it to him. [23] His support and care included: (a) shopping for groceries and prepared food. (b) preparing and serving meals. (c) tidying up. (d) Self-care including toileting. (e) Assisting with mobilisation. (f) Assisting her to attend medical and hospital appointments. (g) Providing access to medical practitioners. (h) Obtaining pharmaceutical provisions, prescribed and non-prescribed. (i) Driving. (j) Providing her with a mobile phone and paying her phone account. (k) Providing her with therapeutic aids, such as a reclining chair and other accessories to make her life more comfortable. (l) Liaising with medical professionals and attending conferences with her. (m) Providing her with money. [24] Although she provided him with limited financial assistance from time to time, such as when he got behind in rent, it was to some extent reimbursement for the financial assistance he provided her, at times from his pension, and significantly his own funds, in the six month period between September 2013 to April 2014 when he had contractual employment.… For instance, he paid the [Frenchs Forest] motel accommodation fees initially. [25] What they did, each for the other, was in pursuit of 'domestic' arrangements, not for 'fee and reward', within the meaning of section 3(4)(a)). It was not a commercial relationship. The provision by [the plaintiff] of domestic support and personal care to [the deceased] cannot fairly or reasonably be described as having been provided 'for fee and reward'. He was not receiving a Carer's Allowance from the government.… [29] The factors [warranting the making of the plaintiff's application for family provision relief, within the meaning of section 59(1)(b) [include: (a) [the plaintiff] was the only person in the deceased's personal life. He provided her with kindness, companionship, care and practical support. (b) [The deceased] recognised his importance in her life by nominating him on most occasions as her next of kin, upon admissions to hospitals. (c) [The deceased] was adamant she would not go into a nursing home, and [the plaintiff] enabled her to stay in her own accommodation. (d) The level of care and attention, though not perfect by professional standards, was the best he could do in the circumstances, where she refused professional assistance. It should not be overlooked, that notwithstanding the considerable contact the deceased had with nurses, social workers, and other medical staff during her hospital admissions, no one apparently entertained concerns about her relationship with [the plaintiff] as her carer, or made application that a guardian be appointed for her. (e) [The plaintiff] was the only person to whom the deceased owed some obligation to make provision for from her estate. (f) The estate is large, and there are no persons with substantial competing claims on her bounty. (g) His situation in life is desperate, and he is in extreme need of financial assistance. He has no other resources at his disposal…. [31] [As regards the competing interests of the defendant, he] is aged 67, married with adult children, and has lived in Perth for 36 years. He has not put forward any evidence of his personal or financial circumstances. He inherited $1,300,000.00 in 2008. In 2014 … real property owned equally with [the deceased at Manly Vale] was sold for $1,005,000.00. The inference is that he is very comfortable. [32] He received his interest in the deceased's estate not by virtue of a Will, but on intestacy. [33] The defendant, notwithstanding his blood relationship to [the deceased], has little moral claim on her testamentary bounty. They had nothing, or very little to do with each other for many years, though he was aware of her poor health. He provided no assistance to her as her health declined, in the latter part of her life, though apparently in a position to do so. The only person in her life was [the plaintiff]. [34] The absence of any testamentary provision for the plaintiff, in combination with the factors which warrant the making of [the plaintiff's] application, form the basis for a finding [under section 59(1)(c)] that adequate provision has not been made for the proper maintenance, education and advancement in life of the plaintiff. [35] Having regard to the factors enumerated in section 60(2) of the Succession Act 2006, and the terms of section 59(2) provision ought to be made for the maintenance, education or advancement in life of the plaintiff. Allowance must be made for the close, intimate and unique nature of the relationship between him and [the deceased], at a time when her health was declining and she was dependent upon the support of others for her care, in circumstances where her only blood relation, her brother, was either unable, or unwilling to provide assistance to her."
In all but one of the records adduced in evidence naming somebody as "next of kin" of the deceased, the person named was the plaintiff. The exceptional case recorded the deceased's solicitor as "next of kin", in fact as "guardian": Court Book page 256. Through the defendant's counsel, the solicitor confirmed that she never held an appointment as the deceased's guardian. For his part, the plaintiff recorded (at Transcript page 166) that, to his knowledge, no person had been appointed as legal guardian of the deceased. "She would have been too frightened to do that", he said.
Although the plaintiff invited the Court to measure his "moral claim" on the bounty of the deceased against that of the defendant, counsel for the plaintiff accepted, correctly, that it is for the plaintiff to prove his case for a grant of relief, not for the defendant to establish a claim against the deceased's estate.
The fact that the deceased died intestate, perhaps without giving any deep thought about the proper disposition of her estate, is not to the point. Whether she did or did not consciously reflect at length upon what would happen to her estate upon her death is unknown; but we do know from the evidence that: (a) the substance of the deceased's wealth was acquired as a beneficiary of the deceased estates of her mother and her older brother whose estates were administered as intestate estates, to her benefit; and (b) with experience of administration of an intestate estate in the family of her birth, the deceased might reasonably be thought to have made a conscious decision to die intestate, allowing her estate to be inherited by the defendant by operation of law.
Although it is for the plaintiff to prove a case, and not for the defendant to establish a claim on the estate, significance does attach to a deliberate forensic decision made by the defendant to adduce no evidence regarding his own financial circumstances. The Court may infer from his silence that he has no need for provision from the estate and, on a comparative basis, he is significantly better off than the plaintiff: Tobin v Ezekiel (2012) 83 NSWLR 757 at [94]; Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23].
The leading case on this is a judgment of Justice Hallen in Sammut v Kleemann [2012] NSWSC 1030, in which, at [137]-[140], his Honour made the following observations: "[137] The question, then, is what flows from a beneficiary's silence? The answer is, in those circumstances, that the court is entitled to infer that the beneficiary has adequate resources upon which to live and that he, or she, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535, per Ormiston J; Frey v Frey (as personal representatives of the estate of HE Frey, dec'd) [2009] QSC 43, at [148], per A Lyons J; Edgar v Public Trustee for the Northern Territory, at [54], per Kelly J; Neil v Jacovou [2011] NSWSC 87 at [248] per Slattery J; Haklany v Gittany [2011] NSWSC 1549 at [49] - [51] per Slattery J; Hyatt v Covalea [2011] VSC 334, at [128], per Zammitt AsJ; Davis v Davis [2012] NSWSC 201, at [80], per Slattery J; Paola v State Trustees Ltd [2012] VSC 158, at [46], per Zammitt AsJ; and Collins v Mutton [2012] NSWSC 548. [138] However, the claims of a beneficiary, as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, and also as a person whose interest in the estate may bear the burden of the order made in favour of the applicant, are to be borne in mind. (It is to be remembered that the Court must specify, amongst other things, the manner in which the provision is to be provided and the part, or parts, of the estate out of which it is to be provided: s 65(1)(c) of the [Succession] Act.) [139] Where there is no evidence from the beneficiary, it is those claims (i.e. as the chosen object of the deceased's testamentary bounty, or as a person with a legitimate claim on the bounty of the deceased, or as a person whose interest in the estate may bear the burden of the order made in favour of the applicant), rather than any financial claim upon the bounty of the deceased, that should be considered. Put another way, and using the oft-quoted words of Salmond J in Re Allen (deceased); Allen v Manchester [1922] NZLR 218, at 220, the Court is not able to have regard to "the means" of the beneficiary, but the Court may still consider "the deserts of the several claimants" and the "relative urgency" of the various moral claims upon [the deceased's] bounty". [140] The Court will, thereby, give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by his, or her, will: Pontifical Society for the Propagation of the Faith v Scales at 19, per Dixon CJ. In this way, too, the Court gives weight to the principle of freedom of testation referred to earlier."
His Honour recently affirmed those observations in Jodell v Woods [2017] NSWSC 143 at [29]-[30] and Meres v Meres [2017] NSWSC 285 at [86].
In the former of these cases, his Honour wrote of a female beneficiary: "Of course, she is entitled to elect to remain silent about her financial resources and needs, and simply to look to the Court to not disregard the deceased's freedom of testamentary disposition and the deceased's preferable disposition to her as the sole beneficiary, regardless of her financial position or needs. Section 61 of [the Succession Act] provides that her interests, as a beneficiary, cannot be disregarded, even though she has not made an application [for family provision relief]."
Section 61 is in the following terms (with emphasis added): "61 Other possible applicants (1) In determining an application for a family provision order, the Court may disregard the interests of any other person by or in respect of whom an application for a family provision order may be made (other than a beneficiary of the deceased person's estate) but who has not made an application. (2) However, the Court may disregard any such interests only if: (a) notice of the application, and of the Court's power to disregard the interests, is served on the person concerned, in the manner and form prescribed by the regulations or rules of court, or (b) the Court determines that service of any such notice is unnecessary, unreasonable or impracticable in the circumstances of the case."
The words of exception, in parenthesis, in section 61(1) are not confined to a beneficiary named in a Will. They apply no less to a beneficiary in an intestate estate.
What, if any, inferences can be drawn from a beneficiary's silence in the case of an intestacy may depend on the circumstances of the particular case, taking into account all the circumstances of the case. However, at least in a case such as the present (where there is evidence of contact, albeit perhaps less than regular contact, between family members) there is no foundation for drawing against the defendant an inference stronger than that which would have been drawn had he been a testamentary beneficiary who remained silent about his financial circumstances.

THE DEFENDANT'S CASE

The defendant's case can also conveniently be articulated by paraphrasing his written submissions: "[54] Under [section 57(1)(f) of the Succession Act], it is not necessary [for the plaintiff and the deceased] to live together full-time but the relationship must be demonstrated to have an ongoing aspect of closeness or intimacy that is not necessarily physical or sexual.… [55] [The plaintiff's] evidence fails to demonstrate that he satisfies this category of eligibility. Further, he cannot overcome the statutory bar imposed [by section 3(4)(a)) of the Succession Act], as there is ample evidence that [the plaintiff] was being paid to care for [the deceased], for fee or reward.… [56] Even if [the plaintiff] can meet the test for eligibility, he must also convince a Court that there are factors warranting the making of the application (section 59(1)(b))…. [58] There are no factors warranting the making of a family provision order in this matter, and [the plaintiff] - as an occasional carer, and someone of whom [the deceased] was fearful - would not have been a 'natural object of testamentary intention'. [59] An issue to be determined by the Court [upon a consideration of adequacy of provision made for the plaintiff] is the disentitling conduct of [the plaintiff], before and after [the deceased's] death [section 60(2)(m)]. [60] … The Coroner's records [relating to the death of the deceased] have been obtained on subpoena. [61] The coronial investigation has raised concerns about the care provided to [the deceased] leading up to her death. [A medical report submitted to the Coroner], which is distressing reading, made the following conclusions: (a) 'The development of the large and open infected pressure areas [on the body of the deceased] strongly suggests that she 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' … (b) 'The extent and severity of the pressure areas strongly suggests that she received very little personal care over several weeks.' … (c) '… should have promoted a "reasonable person" to seek urgent medical and nursing assistance despite her reluctance'…. (d) '… the carer had a very poor understanding or responsibility or recognition that the deceased was gravely ill and had a very short prognosis of hours to days'. (e) '… the carer had little or no understanding or recognition of the symptoms and suffering that the disease had inflicted on the deceased….' (f) 'Even if [the deceased] did not wish… to have treatment for her breast cancer, or had wished to die as quickly as possible, or refused personal care: the appropriate provision of palliative care by a carer would have still been able to provide her with better symptom management, emotional and psychosocial well-being and an improved quality of life and death'.… [62] [The deceased] died alone and in squalor. She had been neglected for days and weeks prior to her death. [63] [The plaintiff] gave little or inadequate care to [the plaintiff] in her final days and weeks. His conduct was callous and indifferent. His lack of care is sufficiently grave, on the opinions expressed in the Coroner's file, to constitute disentitling conduct. [64] [The plaintiff] does not discharge his onus. He is not an eligible person. The Court can be satisfied that there was no de facto relationship between [the plaintiff and the deceased] at the time of her death. He was not dependent on her and a member of her household, nor was he in a close personal relationship with [her] as at the time of her death. His claim must fail."

GENERAL OBSERVATIONS ABOUT THE CASE

The defendant's case was put forcefully, after a lengthy cross examination of the plaintiff which included a substantial attack on his credit, an incidental effect of which was to validate the plaintiff's claim that he suffers a mental health disability.
In fairness to him, senior counsel for the defendant conceded in her closing submissions that the plaintiff had acted as a carer for the deceased; that "their relationship was that of a fond carer and a fond provider of care" (Transcript page 223 lines 41-42); and that the defendant did not contend that the plaintiff had caused, or contributed to, the death of the deceased (Transcript page 192 lines 4-15).
In fairness to the defendant, counsel for the plaintiff conceded that the defendant had visited the deceased in Sydney as late as May 2014 and had maintained contact with her via telephone. The defendant, his wife and two of their children also visited the deceased in 2006. He and his wife visited Sydney twice in 2011.
Each party trode warily about the nature and extent of problems with the mental health of the plaintiff and the deceased, problems which were apparent in the evidence (and in cross examination of the plaintiff) notwithstanding the absence of any expert medical evidence directed specifically to such topics. Some medical records of the plaintiff were admitted into evidence, but they were not directed to the point in a meaningful way.
The plaintiff frankly (and, I accept, honestly) disclosed his history of mental illness. Although senior counsel for the defendant was loathe to concede the plaintiff's disability, it was manifest in his manner of giving evidence, with a tendency towards rambling, unresponsive answers, rapidly delivered ("a torrent of words", in senior counsel's description); his unabashed defence of misleading statements about his financial circumstances made to his bank because of a perceived necessity "to survive"; his ready acceptance that, for much the same reason, he had been justified in breaking a promise to a friend who had given him a substantial amount of money to discharge a debt upon an undertaking not to acquire further debt; his inability to sustain stable employment on an ongoing basis; his tendency to live in, to gravitate towards squalid conditions; and his manifestation of a self-absorbed, obsessive, almost naive but nevertheless manipulative side to a personality which, whether in the context of a long term same-sex relationship or his relationship with the deceased, had a tendency to take refuge in an imagined privacy about the nature of personal relationships.
In his own perception, experience of a need for subterfuge in maintenance of his relationship with his partner of many years, BW, bent him towards maintaining a degree of subterfuge in public presentation of his relationship with the deceased. That tendency of mind was reinforced by a sense of game-playing in his description of his relationship with the deceased as that of "nephew" and "aunty", a fantasy in which she appears actively to have participated. His description of himself as the deceased's "nephew" carried over from his earlier, public description of himself as BW's "nephew" during the course of that relationship: Transcript pages 165-166.
He scrubbed up well, in a neat suit, in his attendances at court; but, early in his cross examination, he broke down emotionally, ostensibly in contemplation of BW, explaining that he continued to grieve for BW, and to hold onto belongings of BW, in whose clothes he was then dressed: Transcript page 65 line 40-page 66 line 9.
Without intending to be exhaustive, I draw to attention seven aspects of the evidence which provide other illustrations of the plaintiff's capacity, character and personality.
First, there is the voice recording (Exhibit P5) and transcript (reproduced at Court Book page 172) of the plaintiff's telephone call to 000 at about 10.47 p.m. on 6 October 2014, shortly after he discovered the deceased's dead body, taken with evidence of a conversation, the following afternoon, between the manager (and a member of the staff) of the hotel in which the deceased died and the plaintiff.
Throughout the plaintiff's 000 call he sounds, by turns, so distraught that he cannot speak and, then, perfectly calm. At one point he both appears to deny that the deceased was a friend of his and to embrace the proposition that "We're very, very close, and ah, we both lost our partners and just held on to each other". Through recurrent sobbing, he told the 000 operator that the deceased had developed "quite bad bedsores", but that she had kept saying that she was getting better; that he had been doing everything he could to get fluid into her that day; that she did not want to die in hospital or to be shoved into a nursing home; that she feared that, if he called a doctor or something like that, she would end up in a nursing home and never get out; and that she feared being tortured to death in a nursing home.
On balance, I hear an authentic voice speaking truth; but, it can be acknowledged, another ear might hear a different message.
Another ear might be reinforced in hearing a different voice by taking note of the plaintiff's conversation with the hotel manager and staff member at about 3.30pm on 7 October 2014. That conversation was in terms to the following effect: The Manager: "It's sad news about [MPS]. The police have been here and the room's been cleared out." The Plaintiff: "No. This shouldn't have happened." Staff Member: "The solicitor rang up this morning and she seemed upset." The Plaintiff: "Who told her? She is not meant to know. This has ruined everything."
An inference which the defendant invites the Court to draw is that the plaintiff dissembled in his conversation with the 000 operator as part of a strategy of creating an impression of concern whilst, at the same time, attempting to exclude the deceased's solicitor from involvement in management of the deceased's estate.
I do not exclude the possibility that, at the time the plaintiff spoke to the hotel manager, a manipulative, acquisitive side of his personality came to the fore. However, the fact that it did (assuming that it did) can be explained by his disability. The hotel manager records that, as the plaintiff spoke, "he was becoming more angry as he was shaking his head, waving his arms and raising his voice."
The prism through which the plaintiff saw the deceased's solicitor was not unlike that through which the defendant sees him. In his pitch to the deceased for a budget (the second piece of evidence to be highlighted), the plaintiff complained about the expense of having the solicitor attend to everyday business of the deceased.
A fair inference from the whole of the evidence is that, independently of money considerations, the plaintiff saw the solicitor as a threat to his control of the deceased's affairs, a form of interference with his relationship with the deceased. In that, at least, he was not mistaken. As events transpired, the solicitor and the defendant having taken charge, the plaintiff was not invited to the deceased's funeral. As he may well have anticipated, he was not only marginalised, but excluded.
The second piece of evidence to be noted is a document (typed but bearing notes in the plaintiff's hand) which, he deposes, he prepared to demonstrate to the deceased how much money she was spending on alternative carers "when it would have been cheaper to allow me to feed her in the morning (in addition to other meals and my other carer's responsibilities), and use the money to buy necessary items, pay for our expenses and our debts": Court Book pages 63-71, 220 and 224-231.
The document forms a foundation for the defendant's contention that, by reason of section 3(4)(a) of the Succession Act, the plaintiff was not in a "close personal relationship" with the deceased. It is capable of being read as a pitch by the plaintiff, to the deceased, to take over her affairs on terms that would provide for him remuneration, provision for his welfare and access to her bank accounts.
Though I accept the plaintiff's explanation of the origins and purpose of the document, it cannot reasonably be read otherwise than as (in part) a pitch for funds, albeit in the form of funding for the parties' joint and several care. Ms FM (a carer whom the plaintiff was seeking to displace) deposed that that is how the deceased read it. On the other hand, it bears something of the character of a "family budget", intermingled with proposals for better care of the deceased, evidencing a concern about the deceased's bedsores, hinting at resentment about the role, and prohibitive costs, of the deceased's solicitor in the day-to-day affairs of the deceased, and demonstrating a resolve to stick by the deceased in her hour of need.
On any view, it is a curious document, not readily understood without acknowledgement of the plaintiff's disability.
The third piece of evidence of note is correspondence between the plaintiff and his bank, Westpac, in which he was attempting to stave off the bank as a creditor by express statements to the effect that he was working, for defined remuneration, as "carer" for his "aunty" (the deceased): eg, Exhibit D14, page 2 (an email dated 5 May 2013), page 5 (an email dated 30 May 2013).
In fact, there was never any formal agreement (legally enforceable or otherwise) for the plaintiff to work as the deceased's carer for remuneration. She paid in money from time to time, he sought it from time to time. When she gave him more money than was necessary for a particular task, he retained it for his own benefit. From time to time, although one cannot imagine an accounting favouring the deceased overall, he expended funds of his own on the deceased. He wrote what he wrote 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.
Fourthly, the plaintiff freely conceded in cross-examination that he had, in desperation, given a recruitment agency (specialising in people with IT skills) a false curriculum vitae: Transcript page 132 lines 3-15 and 41-43. His explanation was that he was desperate to escape unemployment, he had "no choice" but to submit a false CV, he "had to survive". He "was starving, facing eviction." Again, evidence difficult to understand independently of his disability.
Fifthly, when it was suggested to him that he had lied, or would lie, to Centrelink about receipt of earnings incompatible with receipt of a disability pension, he freely acknowledged that "one of [his] options" would be to lie to Centrelink - "You've got to survive somehow" was his rationalisation: Transcript pages 144-145. This is not evidence of an able man. It is consistent with the mindset of a mentally disabled person.
Sixthly, during the course of the plaintiff's oral evidence I gave him an opportunity to respond to a suggestion that he might, upon a grant of family provision relief, obtain one of the deceased's three home units as a residence. The following exchange occurred: Question: "In the evidence where you set out what might, without disrespect, be described as your wish list you include more than once, I think, a statement that your primary concern is to obtain money for accommodation. Answer: To obtain accommodation, yes. Question: My question is not to be taken as indicating any view that I have formed, but I am concerned that nobody in the evidence appears to have addressed whether or not one of the units [of the deceased at Balgowlah] might be a unit that could be occupied by you. Answer: For two reasons not, your Honour, because of my - it was in the original statements, that I made to the psychologist. I can't cope with units. I need a house which is stand-alone with some grass around it somewhere, some space, for psychological reasons. I can't cope with the noise in units. That particular block of units is on a busy road. [It] is a busy road and I'd be ill very quickly. So, unfortunately, they would not be suitable. I do need a stand-alone house for various reasons and the older the better, the more run down the better, actually. The more originally older the better, can be very old. Question: You said there was a couple of reasons. You've given me, I think, one. Is there another reason? Answer: First reason, psychological reasons, positive psychological reasons for a house in that I have a boundary problem psychologically because my mother violated my boundaries and took me to levels of intimacy that no mother should have taken a son and because of my boundary problem, which is a psychosis, I need to have a proper space in wherever I live away from other people, that's served best by a house with a yard around it."
These answers, in terms, demonstrate the plaintiff's awareness of a disability. They are, perhaps, unusual also in that the plaintiff submerged any desire to acquire property (which might have been present in most, if not all, rational minds) to a deeper anxiety associated with his disability.
Seventhly, during the course of his cross examination the plaintiff refused to reveal openly his current address where (in my terms) he claimed to be sleeping "rough", effectively "homeless". He claimed to fear for his life if his current address were to be revealed in open court: Transcript pages 153-155. It is difficult not to see this as evidence of paranoia.
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.
During the course of the hearing, I expressly raised with counsel my concerns about the plaintiff's capacity. I was, and remain, satisfied that he was able to conduct the proceedings, with the benefit of a solicitor and counsel, without the intervention of a tutor (A v A [2015] NSWSC 1778 at [53] and [68]-[80]; IA v TA [2016] NSWCA 179 at [55]); but I was, and I remain, concerned that, if he were to be granted substantial provision from the estate of the deceased, he might be unable to manage his affairs without some form of protective order (CJ v AKJ [2015] NSWSC 498 at [14]-[53]), possibly the appointment of a manager pursuant to section 41 of the NSW Trustee and Guardian Act 2009 NSW.
Whether or not the deceased was ordinarily in good mental health is not such a significant question. Nor is the evidentiary material to hand on that score as extensive as that relating to the plaintiff, however deficient the evidence may be. Nevertheless, importance does attach to an understanding of the deceased because it bears directly on an assessment of her relationship with the plaintiff. She was profoundly ill throughout the time of her relationship with the plaintiff. She did reject medical assistance or the security of continuous professional care throughout that time. She did maintain a "fond" relationship with the plaintiff, whatever might be the true parameters of the relationship. She did indulge him with supplies of money, in irregular amounts at irregular times, in connection with the maintenance of them jointly and severally. She did accept descriptions of him as her "next of kin", which characterised him as her "nephew", on multiple occasions in dealing with hospitals. And, at much the same time, she did speak ill of him to other persons, including, on one occasion, the police. Accepting the evidence of independent witnesses, she appears also to have been acutely conscious of his homosexuality, a preoccupation (with his sexuality) they appear to have shared.
None of the defendant's witnesses, but one (FM), were cross examined. Their evidence is plausible, necessarily to be taken into account, but not decisive against the plaintiff. The conditions in which the deceased lived were, to a sane person of ordinary sensibilities, plainly unpleasant, and increasingly so. The deceased spoke ill of the plaintiff to more than one person and, at times, in a manner indicative of fear or apprehension. However, it is also clear that she resisted treatment, and acquiesced in arrangements which facilitated an ongoing, personal relationship with the plaintiff.
Throughout the time of her relationship with the plaintiff, the deceased remained in personal contact with her solicitor. At the deceased's request, the solicitor routinely transacted routine business, incidents of everyday life, in the payment of accounts payable by the deceased and in supervision of finances of the deceased.
For the last seven months of her life (between 10 March and 6 October 2014) the deceased lived in a unit at the Frenchs Forest hotel where she died. During that time, her solicitor visited her on a number of occasions, each time on notice. The solicitor's account of those visits includes (at Court Book page 265) the following: "At first I knew that [the deceased] had a home nursing service attending on her at the Hotel as [she] had instructed me to pay a number of their invoices. However, I was becoming increasingly concerned about [her] deteriorating medical condition. I spoke with her on many occasions about having additional nursing care and considering nursing home accommodation. Her response was always in words to the effect: 'No. There's no way I will ever go into a nursing home. It would kill me.' She also told me: '[The plaintiff] is helping me with toileting. He is the only person who can lift me without dropping me. He is the strongest man in Australia.' I said to her: 'It would be far better if you had care from within an organisation where the staff are accountable.'"
The determination of the deceased to remain as she was, wholly inadequate though her living conditions were, is reinforced by the evidence of the defendant himself. He deposed (at Court Book page 274) to the following: "In May of 2014 my wife, my eldest son and I went to see [the deceased] in her motel room [at] Frenchs Forest. She looked gravely ill and was just skin and bone. She could hardly lift her arms. I was horrified to see her in such a condition. When I told her that she should go to hospital, she said: 'For the moment I want to stay here.'…"
The plaintiff was not alone in not taking effective steps to ensure that the deceased obtained proper, professional palliative care.
The one witness of the defendant (FM) cross examined on behalf of the plaintiff was a care worker, whose contact with the deceased was confined to contact, at the Frenchs Forest hotel, between May and late September 2014 or thereabouts.
She too confirmed that the deceased had made a deliberate decision to live at the hotel. Her affidavit includes the following evidence (at Court Book page 216): "I said to [the deceased]: 'Why are you in a hotel room?" and [the deceased] replied: 'I don't want to go to a nursing home, I am waiting on other accommodation.' Another time [she] said to me: 'I'm happy here, I don't need anything else.' During the first weeks [of our contact], I became concerned about [the deceased] and wanted to help her. However I saw that she got annoyed at me when I mentioned her living arrangements.'"
The same witness also deposed to the deceased's express identification of the plaintiff as the person on whom she relied to assist her with her toileting.
The witness deposed that, as the deceased's condition deteriorated, she started to notice that the deceased's room increasingly smelled of faeces and urine, to the point that she felt sick when entering the room, and she formed an impression that the deceased could be affected by drugs. The fact of deteriorating living conditions may be accepted. Greater caution is required in giving force to an impression of drug taking. Medical evidence presented to the Coroner was more circumspect.
FM's evidence is nevertheless consistent with medical evidence presented to the Coroner (Exhibit D30, paragraph 6.11) that the deceased may have been "in a delirious state in the days before her death".
It was in that period (on 29 September 2014) that FM deliberately attended upon the deceased, without notice, in order to check upon the deceased's condition and, incidentally, on the plaintiff. She had a confrontation with the plaintiff, the differing accounts of which are not necessary to resolve. In her own terms (explained at transcript pages 185-186), she attended the unit at a time when the plaintiff was there so that she could, to satisfy her conscience, confront him and have a final look at the deceased to ensure that the deceased was safe, without a need or want for FM to do anything. Having confronted the plaintiff, she did not return to see the deceased, she says, because she was frightened of the plaintiff.
My impression of her evidence about this occasion was that she went to confront the plaintiff, looking for a fight, and she found one. Still, the deceased remained in the plaintiff's care, such as it was, without further intervention.
To judge the plaintiff, the deceased and their objectively unusual relationship without taking into account the peculiar nature of the landscape they occupied (and the potential for, but absence of, third party intervention) would be to misjudge the facts and, quite possibly, to impose on the plaintiff and the deceased a form of judgemental thinking that they did not share and, perhaps, were not capable of sharing. It is no easy task to stand in the shoes of either the plaintiff or the deceased, as the Court must endeavour to do in order to understand them and their relationship.

CONSIDERATION OF THE ELEMENTS OF THE PLAINTIFF'S CLAIM

The Plaintiff as an "eligible person" : sections 3(3), 3(4)(a), 57(1)(f) and 59(1)(a)

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).
It is not to the point, in terms of jurisdiction, that the plaintiff's "support" and "care" were not of a high quality. It was well intentioned, although both inappropriate and inadequate. It was received, albeit at times grudgingly, voluntarily, by a person herself not free of poor judgement.
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.
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.
Had he been a stronger, more stable personality, he might have succeeded, where nobody else did, in persuading her (or in forcing her) to submit to professional, palliative care; but, as it was, as she was and as he was, he probably paid too much, not too little, regard for her subjective, reclusive preference to die in squalor as she did. The manner of her death was tragic, but responsibility for the tragedy cannot be sheeted home to the plaintiff, himself a tragic, marginalised person in whose close company she chose to live.
I do not discount the possibility that, in the early days of their relationship, there was a sexual element to it - after all, the deceased complained (he says falsely) to the Police that he had demanded payment for sex - but it is difficult to imagine anything other than nominal sexual encounters given the state of the deceased's deteriorating health.
Be that as it may, I am satisfied (for the purpose of section 59(1)(a)) that the plaintiff is an "eligible person" within the meaning of section 57(1)(f).

Factors warranting: section 59(1)(b)

I accept the plaintiff's submission that "there are factors which warrant the making of" his application for relief (within the meaning of section 59(1)(b)) and, subject to one qualification, his identification of those factors.
The qualification is that, in my opinion, allowance must be made for the plaintiff's disability, and for the deceased's encouragement in the plaintiff of a belief that he could look to her for ongoing support.
Odd though their relationship was, there is significance in the deceased's nomination of the plaintiff as her "next of kin" and in her public recognition of him as her "nephew".
It is not the case, as the defendant contends, that the plaintiff imposed on the defendant his nomination of himself as "next of kin" and his description of himself as her "nephew".
Most of the hospital records produced on subpoena take the form of correspondence or typed documentation recording the parties' relationship. However, one hospital's documents include: (a) a document, entitled "Financial Consent Form" and dated 24 December 2013, signed by the deceased personally, affirming identification of the plaintiff, as her "nephew" against an entry that reads "Emergency information (next of kin)"; and (b) another document, also signed by the deceased personally, identifying the plaintiff as "Person to Notify", "Next of Kin" and "Nephew": Court Book pages 257-259.
The evidence also includes two handwritten notes - one in the nature of a draft prepared in anticipation of the other - in the handwriting of the deceased, said by the plaintiff to have been written in October 2013, in which she spoke of the plaintiff as her "nephew": Exhibit P4, pages 364-365.
In a practical sense, the plaintiff was, as the deceased recognised, "family", faults and all.

Adequacy of provision: section 59(1)(c)

Section 59(1)(c) of the Succession Act requires the Court to consider whether it is satisfied, at the present time, that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the operation of the intestacy rules in relation to the estate of the deceased.
What is "adequate" and "proper" in a particular case depends upon the circumstances of the case; the concepts they embody are relative to those circumstances, not governed by an abstract absolute: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19; Vigolo v Bostin (2005) 221 CLR 191 at [114] and [122].
Depending on the circumstances of the particular case, the Court's inquiry requires a consideration of present and future needs, including a need to guard against unforeseen contingencies: Collins v McGain [2003] NSWCA 190 at [41]-[42] and [45]-[51].
Care also needs to be taken against the possibility that preconceptions and predispositions may constrain the evaluative judgement required to be made: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].
The defendant contends that the Court should find that the plaintiff cannot overcome the hurdle which section 59(1)(c) presents to his case because, it is said, the deceased made adequate provision for him in the money she paid to him, from time to time, during her lifetime. This contention follows closely upon the defendant's submission that the plaintiff was no more than a carer, whose relationship with the deceased came to an end before her death, and could give rise to no forward operating "moral duty".
It is not to be doubted - indeed, it is common ground - that the deceased, from time to time, provided financial assistance to the plaintiff and, in a similar vein, allowed him to "keep the change" (in significant sums) from money given to him for particular purposes associated with her welfare.
The precise amount paid to, or for the benefit of, the plaintiff cannot be known, although the defendant has endeavoured to reconstruct accounts based upon an analysis of bank accounts. In total, over the period of her relationship with the plaintiff, the deceased can confidently be said to have provided him with assistance in the thousands of dollars.
Nevertheless, much of that assistance was by way of modest payments, and none of it appears to have been by way of a substantial capital sum. It might have fuelled hopes of future benefit in the breast of the plaintiff, but it could not have long sustained him after the demise of the deceased. It served, as much as anything, to cultivate his dependency on her.
That element of dependency, coupled with the plaintiff's marginalised lifestyle associated with his disability, and the absence of any testamentary provision made for him by the deceased, mandate a finding (for the purpose of section 59(1)(c)) that adequate provision for the proper maintenance, education or advancement in life of the plaintiff has not been made by the operation of the intestacy rules in relation to the estate of the deceased, according to which the plaintiff has no entitlement to participate in the estate.

What, if any, relief should be granted to the plaintiff: section 59(2)

Section 59(2) provides that the Court may make such order for provision out of the estate as it thinks "ought" to be made for the maintenance, education or advancement in life of the plaintiff, having regard to the facts known at the time the order is made.
There is no mathematical formula able to be applied for the purpose of making a determination of this character. A process of evaluation requires that the Court consult concepts of justice; wisdom; and its perception of community standards of what is right and appropriate, speaking for the feeling and judgement of fair and reasonable members of the community: The Pontifical Society for The Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; Andrew v Andrew (2012) 81 NSWLR 656 at [16].
Key features of this case are the nature of the personal relationship between the plaintiff and the deceased, over a comparatively short period of time during which the deceased transitioned towards death; the companionship, domestic support and personal care, inappropriate and inadequate though that care might objectively have been, during that period of stress in the life of the deceased; and the disability of the plaintiff, which informed his relationship with the deceased, his ability to care for her and his dependency upon her, just as it continues to inform any assessment of his present and future needs.
The plaintiff's disability and the deceased's accommodation of it, in her peculiar determination to avoid nursing home accommodation and professional palliative care, take this case out of the ambit of any concept of "disentitling conduct" that might otherwise find fertile ground for operation .
On the other hand, the nature and comparatively short duration of the relationship between the plaintiff and the deceased carry the consequence that any "entitlement" the plaintiff might be perceived to have to testamentary provision falls short of the standard of provision for a spouse not uncommonly identified with Luciano v Rosenblum (1985) 2 NSWLR 65 at 69-70; that is to say, to the extent to which an estate permits, security of accommodation, income sufficient to permit the spouse to live in the style to which the spouse is accustomed, and the provision of a fund to which resort may be had in order to meet unforeseen contingencies.
The plaintiff seeks a lump sum legacy sufficient to enable him to discharge his debts, to purchase a motor vehicle, to purchase a mobile phone, to cover dental and medical costs, to provide him with some security of accommodation in the Manly area, to cover the costs of treatment and support for his psychiatric condition, and to provide for contingencies. His ambit claim (not vigorously pressed) is for a legacy of the order of $1.7 million.
The defendant submits that no greater provision can be justified then a legacy in an amount sufficient to discharge the plaintiff's current credit card debt (approximately $38,000) or to make a contribution towards discharge of that debt.
Neither party has addressed the question whether (and, if so, how) a grant of family provision relief will affect the plaintiff's pension entitlements. Accordingly, I leave that question aside.
In my assessment, the appropriate form of order for provision is one which provides for the payment of a legacy in a sum which, assuming prudential management, is sufficient, for a reasonable time (not necessarily for life) to provide the plaintiff with ongoing rental assistance, and a fund from which ordinary living expenses (including, but not limited to, allowances for medical and dental treatment) can be paid and contingencies can be provided for, as reasonably required.
I propose to grant the plaintiff a legacy in the sum of $550,000, but I very much doubt his capacity to manage such a sum without professional assistance. The course of his life to date, the nature of his disability and his future prospects all suggest that, whilst he might be able to manage small amounts of money in payment of ordinary living expenses, he cannot be relied upon to deal with any substantial amount prudentially. If he were paid a substantial sum today, without a protective mechanism to maintain its integrity, I fear it could be gone tomorrow or, perhaps, the day after, with nothing to show for its dissipation.
A possibility that the plaintiff might squander provision made for him is not a ground for denial of provision, but a factor that goes to the form of any order made for provision: Carroll v Cowburn [2003] NSWSC 248 at [17]; West v France [2010] NSWSC 845 at [82]-[88].
The Court's powers on a grant of family provision relief extend to imposition of conditions and the making of consequential orders affecting the manner in which provision is to be provided: Succession Act, sections 65-66. In McLean v Public Trustee [2001] NSWSC 970 at [20]-[21] and [24] Master Macready (exercising comparable powers under the Family Provision Act 1982) ordered that a legacy be paid out of an estate to be held by the Public Trustee (a statutory predecessor of the NSW Trustee) on protective trusts for a plaintiff who was a compulsive gambler. Something similar is required in the present case.
Subject to allowing the parties an opportunity to be heard as to the form of orders to be made, I am presently minded to make orders to the following effect: 1. ORDER that provision be made for the plaintiff out of the estate of the deceased by way of a legacy in the sum of $550,000. 2. ORDER that no interest accrue on that legacy if paid within 28 days of the making of these orders, with interest to accrue thereafter at the rate for which the Probate & Administration Act 1898 NSW, section 84A, provides. 3. ORDER that the plaintiff's costs of these proceedings be paid out of the estate of the deceased on the ordinary basis. 4. ORDER that the defendant's costs of the proceedings be paid out of the estate of the deceased on the indemnity basis. 5. ORDER, subject to further order, that any amount payable to the plaintiff pursuant to these orders (by way of legacy, interest or costs) be paid into court to abide orders of the Court, not to or at the direction of the plaintiff. 6. RESERVE for further consideration whether any (and if so, what) orders affecting the plaintiff should be made under, or by reference to, the NSW Trustee and Guardian Act 2009, section 41, or otherwise upon an exercise of the Court's protective, or analogous, jurisdiction.
Were orders to be made for the estate of the plaintiff, in whole or part, to be subject to projected estate management, I am presently inclined to the view that management of his estate should be committed to the NSW Trustee, with such, if any, directions as may be appropriate to allow him to manage any ongoing pension entitlements, and incidental funds, on a day-to-day basis.
As presently advised, I tend to the view that this might be a more expedient form of order than that found in McLean v Public Trustee [2001] NSWSC 970 at [24]; but I may be mistaken about that, and prudence suggests that the solicitor for the plaintiff be invited to consult with the NSW Trustee. My own experience of "protective" trusts (not limited to those for which section 45 of the Trustee Act 1925 NSW provides, but including discretionary trusts generally) is that they can, in practice, give rise to greater administrative problems, and involve less flexibility, than a protected estate management regime. See, for example, Re X [2016] NSWSC 275 at [41]-[43]. A management regime can generally be revoked or varied more readily than a trust regime. Nevertheless, much depends on the facts of the case, the nature and size of the provision to be made and the terms of the particular protective regime.
Whatever their form, protective orders need to be measured, not only against what is in the interests, and for the benefit, of the person in need of protection (Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238 and 241-242; GAU v GAV [2016] 1 Qd R 1; [2014] QCA 308 at [48]) but also considerations of utility (Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106; CJ v AKJ [2015] NSWSC 498 at [51]).

I certify that this and the preceding 42 pages are a true copy of the reasons for judgment herein of his Honour Justice Lindsay. Associate Date: 4 May 2017

Introduction

On publication of the principal reasons for judgment in these proceedings on 4 May 2017 the proceedings were stood over to 10 May 2017 for further consideration and, if appropriate, final orders.
In the interim, it came to my attention that, shortly after publication of my principal reasons for judgment, on the same day, the Court of Appeal published (as Saravinovski v Saravinovska [2017] NSWCA 85) its reasons for dismissal of an appeal from the judgment of Kunc J in Saravinovska v Saravinovski (No. 6) [2016] NSWSC 964.
As final orders had not been made in the current proceedings, on 9 May 2017 (via email) I caused the parties to be invited to make any supplementary submissions they might seek to make consequent upon the Court of Appeal's judgment.
When the proceedings came before me on 10 May 2017 the defendant sought an opportunity to address the implications of the Court of Appeal's judgment for the proper determination of the proceedings.
The plaintiff, for his part, sought an opportunity to make submissions about the appointment of a private protected estate manager, and the making of a partial management order, in relation to his estate.
For these two reasons, the proceedings were adjourned (with directions) until today.
In accordance with the Court's directions: 1. the defendant filed supplementary written submissions dated 17 May 2017 (MFI D33); and 2. the plaintiff filed supplementary written submissions in reply dated 25 May 2017 (MFI P34).

Protective Orders affecting the Plaintiff

The plaintiff has also filed, today, an affidavit sworn by his solicitor on 29 May 2017 in which she deposes that: 1. the plaintiff has endeavoured without success to identify a person who is prepared to consent to appointment as a private manager of his (protected) estate. 2. in these circumstances, he submits to the making of an order (pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act 2009 NSW) that management of his estate be committed to the NSW Trustee. 3. in submitting to such an order, he invites the Court (by a direction under section 64 of the NSW Trustee and Guardian Act 2009), or the NSW Trustee (under section 71 of the Act), to mould the management regime affecting his estate so that he remains at liberty to manage on his own account: 1. his pension; and 2. any income to which he may become entitled through his own personal exertions.
If and when protected estate management orders are made affecting the plaintiff consequent upon an award of family provision relief to him in these proceedings, I am presently minded to make orders along the lines requested by him.
Generally, paying due regard to the purposive character of the protective jurisdiction (illustrated by the "general principles" set out in section 39 of the NSW Trustee and Guardian Act 2009), the better course - both for the protection of a person in need of protection and for due management of his or her estate - is to make a management order that relates to the whole of the person's estate, coupled with directions designed to ensure that as much of the estate as can responsibly be self-managed is self-managed: Re Application for Partial Management Orders [2014] NSWSC 1468.
Critically, however, each case must be considered on its own facts, measuring what is done, or not done, by whether it is in the interests, and for the benefit, of the person in need of protection.
As presently advised, and upon an assumption that the plaintiff retains on appeal the family provision relief I order in his favour, I am minded to make a declaration of incapacity under section 41(1)(a) of the NSW Trustee and Guardian Act; an order (under the same provision) that the estate of the plaintiff be subject to management under the Act; an order (under section 41(1)(b) of the Act) that management of his estate be committed to the NSW Trustee; and (pursuant to section 64 of the Act) orders, subject to further orders of the Court or the NSW Trustee, that he be at liberty to manage on his own account his pension and any income to which he may become entitled through his own personal exertions.
Nevertheless, as the defendant has foreshadowed an intention to appeal from any grant of family provision relief to the plaintiff, I propose to defer further consideration of the making of protected estate management orders until the final determination of the appeal, or further order.
It is appropriate to take this course for three reasons.
First, as noted in paragraph 144 of my principal reasons for judgment, considerations of utility loom large upon an exercise of the Court's discretion in the making, or revocation, of protected estate management orders. The utility or otherwise of management orders affecting the plaintiff needs to be measured against the size and nature of his estate, an exercise better conducted at the end of these proceedings than now.
Secondly, were I, at this stage of the proceedings, to make protected estate management orders affecting the plaintiff the legal effect of those orders would be that, subject to further orders of the Court, he could not defend the defendant's appeal without the appointment of a tutor (prima facie, the NSW Trustee as manager of his estate): NSW Trustee and Guardian Act, section 71; Civil Procedure Act 2005 NSW, section 3 (definition of "person under legal incapacity"); Uniform Civil Procedure Rules 2005 NSW, rule 7.14; David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417; Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [36]-[41]; Re K, an incapable person in receipt of interim damages awards [2014] NSWSC 1286 at 19 and [40].
Thirdly, as noted in paragraph 91 of my principal reasons for judgment, my present assessment is that the plaintiff is capable of managing these proceedings (including, I assume, the prospective appeal) without the intervention of a tutor provided that he is represented by competent lawyers, which he is.

The judgment of the Court of Appeal: [2017] NSWCA 85

The meaning of "fee and reward" in the Succession Act, section 3(4)(a). The judgment of the Court of Appeal (constituted by Beazley ACJ, Leeming JA and Emmett AJA) concerned proceedings under the Property (Relationships) Act 1984 NSW, not, as here, proceedings under the Succession Act 2006 NSW.
In paragraph 30 of my principal reasons for judgment I noticed, as I had in Skarica v Toska [2014] NSWSC 34 at [37], a difference in wording between section 5(2)(a) of the Property (Relationships) Act 1984 and section 3(4)(a) of the Succession Act 2006 which, I assumed, had no operative significance.
In paragraphs [19]-[27] of the Court of Appeal's judgment Leeming JA, with whom Beazley ACJ agreed, confirmed the correctness of that assumption.
Accordingly, the expression "for fee and reward" in section 3(4)(a) of the Succession Act is to be read as if it said "for fee or reward", and discussion of the expression "for fee or reward" in section 5(2)(a) of the Property (Relationships) Act has direct application in the current proceedings subject, of course, to each piece of legislation being read as a whole and with due regard to its particular subject matter, scope and purpose.
Material Observations of the Court of Appeal. In their supplementary written submissions (not elaborated in further oral argument) the parties drew particular attention to paragraphs [36], [38]-[41] and [167]-[168] of the judgment of the Court of Appeal, [2017] NSWCA 85.
Those paragraphs are predicated upon an acceptance of the correctness of the construction given to section 5(2)(a) of the Property (Relationships) Act by Kunc J. His Honour's reasoning appears, critically, in paragraph [376] of his judgment, [2016] NSWSC 964, the substance of which is extracted in my principal reasons for judgment at paragraph [34].
Having extracted paragraphs [375]-[376] of Kunc J's judgment, Leeming JA wrote the following in paragraphs [36]-[41] of his judgment: [36] The contrast drawn by the primary judge [Kunc J] may be illustrated by the distinction between, on the one hand, a nurse or housekeeper who lives with an aged or disabled person and is compensated (in money or board or both) and, on the other hand, a niece or nephew who lives with an older relative who is no longer self-sufficient. Even if it is made clear that the niece or nephew will receive free board and lodging and may have an expectation of an inheritance if the relative predeceases him or her, if the purpose of doing so is primarily based on family ties, then he or she will not be living together with his or her relative "for fee or reward". [37] Those examples are more clear-cut than some of the relationships which will arise in real cases (an example is the family friend who was treated as a son considered in Ye v Fung [2006] NSWSC 243). It is to be expected that there will be many cases where domestic support and personal care are provided for motives that have elements of affection or familial duty, but also elements of an expectation of some benefit in return. However, it is not necessary in order to resolve this appeal to address cases where the position is more nuanced. [38] The appellant seized upon the words "direct relation" or "direct connection" in the primary judge's formulation [in paragraphs [375]-[376] of his judgment], and contended that on the findings of fact made by his Honour, there was the requisite relation or connection. But there is, in one sense, a direct relation or direct connection between the provision of accommodation to both the nurse or housekeeper and to the niece or nephew in the examples mentioned above. It would however be wrong to disentitle a person merely because it could be shown that there was some causal connection between the fee or reward and the provision of domestic support and personal care. That is the point made by the primary judge in [paragraphs 375-376 of his judgment], with which I respectfully agree. [39] There is another matter to bear in mind. These questions will only arise if the two people are "living together" and not married or in a de facto relationship. If the purpose of the living together is primarily based on bonds of family or friendship, then it is likely that the provision of domestic support and personal care will not be "for fee or reward". If the purpose of living together is primarily remunerative, then the provision of domestic support and personal care is likely to be "for fee or reward". [40] There has been an understandable tendency to take the imprecise words of the statute and to impose glosses upon them. Thus it was said in Re Filomena Rodi, decd [2016] NSWSC 1696 at [53] that "in context the expression 'for fee or reward' implies a commercial arrangement". In White v O'Neill[2010] NSWSC 1193 at [47], there was reference to "a contractual arrangement in which the fee or reward is produced by the provision of support and care". [41] It may be helpful to ask whether a relationship is properly characterised as "commercial" or "contractual". If the relationship be "commercial" then it is likely that the domestic support and personal care will be provided for fee or reward. But ultimately the statutory language requires an examination of a question of fact: why did the person provide domestic support and personal care? I respectfully agree with the observation of the primary judge at [378] that placing a gloss upon the statute may ultimately distract from the task of applying the words of s 5(2)(a) themselves. I appreciate, of course, that there will be cases where the reason for providing domestic support and personal care is contestable. Motivations may be mixed, and may vary over time, as the facts in Ye v Fung demonstrate. Here, as Emmett AJA has observed, the board and lodging which Maria received were an incident of her close personal relationship with her father-in-law Chris, but were not the reason for her caring for him. It follows that there was no error in the primary judge's conclusion that she was not disentitled by s 5(2)(a)."
Having earlier summarised Kunc J's reasons, Emmett AJA made the following observations in paragraphs [167]-[168] of his judgment: "[167] The findings made by the primary judge [Kunc J] cannot support a conclusion that Maria provided support and care to Chris in consideration of the statements made by him in Macedonia and in anticipation of, and in exchange for, the benefits that Chris subsequently conferred. Thus, the board, lodging and accommodation that Maria enjoyed with her family was not provided in consideration for domestic support and personal care but constituted an incident of the ongoing close personal relationship between her and Chris. Board, lodging and accommodation were necessary for the continuation of the relationship and for Maria to undertake the tasks that she performed, such cooking, cleaning, washing, shopping and the like. [168] The primary judge did not err in concluding that the domestic support and person care provided by Maria was not provided for fee or reward. It follows that s 5(2)(a) of the Property Act is not enlivened."

The Parties' Supplementary Submissions

In his supplementary submissions the defendant: (a) maintains his submission that the plaintiff and the deceased were never "living together"; and (b) contends that, if they were living together, the plaintiff's purpose (or, at least, his primary purpose) in doing so was monetary, such that the Court should hold that his provision of domestic support and personal care to the deceased was "for fee or reward", not as an incident of a close personal relationship.
In his supplementary written submissions the plaintiff maintains the contrary case.
In elaboration of his submission that he and the deceased were "living together" he summarises the plaintiff's evidence (which I accept as substantially correct) about what was a typical day for him and the deceased, and the nature and extent of his regular, personal interactions with the deceased. See paragraphs [51] and [106] of my principal reasons for judgment.
The plaintiff further contends that the domestic support and personal care provided by him to the deceased was an incident of a relationship primarily based on friendship and love. He draws attention to the fact that he was with the deceased on each of her hospital admissions between December 2012 and March 2014, with her acquiescence; she had him listed as her next of kin on nearly all her hospital admission records during that period; he liaised with hospital staff, advocated for her when she was in hospital, and made arrangements for her admission to hospital and discharge; he attended hospital case management meetings relating to the deceased; and he arranged her accommodation on each discharge from hospital.
In answer to the question suggested by Leeming JA in paragraph [41] of his Honour's judgment (Why did the plaintiff provide domestic support and personal care for the deceased?), the defendant contends that the plaintiff did it "for money". The plaintiff contends otherwise, that he did it as an incident of a friendship founded on mutual care, support and practicality, enabling both parties to live in a functioning, personal relationship.

Findings

In my assessment, the facts of the case fit the paradigm for which the plaintiff contends, not that for which the defendant contends.
Nothing in the judgment of the Court of Appeal requires a departure from the scheme of orders proposed in paragraph [141] of my principal reasons for judgment.

Orders

Accordingly, for the reasons set out in my principal reasons and supplemented by these reasons, I make those orders.
Accommodating the defendant's foreshadowed appeal, I also reserve to the defendant liberty to apply for a stay of the orders if and when a notice of appeal (with grounds of appeal specified) is filed in the Court of Appeal. If there is agreement between the parties on the terms upon which a stay should be granted, I will entertain an application for a stay in chambers.
There is no immediate need, today, to consider whether a stay should be granted because no grounds of appeal have been articulated, and the effect of the orders made is such that, subject to further orders, any moneys payable to the plaintiff are to be paid into court to abide orders of the Court, not to or at the direction of the plaintiff. This scheme of orders might, within its own framework, obviate any need for a stay to be sought or granted.
Having regard to the personal circumstances of the plaintiff, I assume that a condition of any grant of a stay would be that the defendant prosecute his appeal with all due expedition.

Amendments 30 May 2017 - Addendum (30 May 2017) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2017

At a glance

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Cases Cited (50)

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