Amprimo v Wynn

Court of Appeal (NSW)|2015-05-26|Before: McColl JA, Meagher JA, Gleeson JA, McLelland J, Rein J

Background facts

Mention should first be made of the primary judge's assessment of the credibility of the various witnesses. None of those assessments is challenged, although some findings made on the basis of them are challenged. The principal witnesses were the appellant, the respondent (Mr Wynn), Mr Williams, Ms Duncan and Mr Britton. With one exception (dealt with by the primary judge at [22]), his Honour considered that there was a need for considerable caution in accepting the appellant's evidence about any matter which was not corroborated by independent evidence: Judgment [21], [22]. The primary judge had no issues with the credibility of other witnesses. He accepted the evidence of Ms Duncan in its entirety: [24]; and considered each of Mr Wynn, Mr Williams and Mr Britton to be reliable and honest: respectively Judgment [30], [25], [28].

The deceased

Michael Ryan was born in December 1951 and died sometime between 7 and 16 February 2012. For almost the whole of his life he lived in his family's home at Fairlight, a harbour-side suburb of Sydney. He had no brothers or sisters. His mother lived in that house until her death in 1996. His father died in the 1970s. In 1979 the deceased married Wendy Ryan. They had no children and were divorced in 1982.
The deceased had many friends. He practised law with success and became a partner of the firm, McClellands. He also had an enthusiasm for breeding and racing thoroughbred horses.

The deceased's last will

By his last will the deceased gave a one-half share of his estate to Mr Britton, with the remaining half to be divided equally among the survivors of his uncle, Mr John Ryan and his friends Mr Williams, Ms Duncan and Mr Bryan Tompson (referred to as Brian Thompson in the will and judgment below). John Ryan died before the deceased. Mr Tompson died on 3 December 2012. At the time of the trial, after the making of interim distributions totalling $1,000,000 and payments in settlement of other claims, but before payment of all costs associated with this litigation, the estimated value of the estate was in excess of $5.8 million.
Mr Britton and Mr Williams were long-time friends of the deceased. Mr Britton and the deceased saw each other regularly until about August 2006 when the incident referred to below occurred. The deceased met Mr Williams in 1965 when they attended the same local school. He was the godfather of Mr Williams' daughter, Sophie. Between 1996 and 2006 Mr Williams and Sophie visited Fairlight on weekends and in school holidays. From mid-2006 Mr Williams also had little contact with the deceased.
Ms Duncan met the deceased in 1982 and was a long term business associate and friend who assisted the deceased with his horse breeding and racing interests. She did so after July 1994 with the benefit of a general power of attorney. She managed those interests in accordance with his instructions until his death.
The respondent became the deceased's accountant in 1975 and over the years they became close friends. In May 2006 the deceased gave him a general power of attorney and Mr Wynn took over the day-to-day management of the deceased's financial affairs, other than those relating to his equine interests.

The August 2006 incident

In 2006 the deceased acted as solicitor for Mr Marcus Einfeld, a retired Federal Court Judge who had sought to evade conviction for a speeding offence by stating in a statutory declaration that he was not the driver of the vehicle which had been detected by a camera to be travelling in excess of the speed limit. The case attracted significant publicity and in August 2006 a Ms Mirka Christos claimed to have discovered material in the deceased's garbage bins which related to the case brought against Mr Einfeld. The deceased considered his position as Mr Einfeld's lawyer to have been seriously compromised, and ceased to act. The garbage bins incident received much coverage in the press, including the publication of descriptions of Ms Christos as "Michael Ryan's prostitute". Within months, the deceased stopped working as a partner of McClellands, sold that practice to Slater & Gordon and decided not to renew his practising certificate. He then withdrew and became a recluse, rarely leaving the Fairlight house.
It would seem that he did leave the Fairlight house to purchase food and other essentials. The evidence permitting that inference included cash withdrawals made from his Westpac Bank account using an ATM at Manly. In the period from July 2008, those withdrawals were made once or twice in each month until 6 February 2012.
Mr Britton did not see the deceased or have any contact with him from 2007 until New Year's Day in 2012, when he attended a barbecue at Fairlight which was arranged by the appellant. Otherwise, Mr Britton's attempts to contact the deceased were either unanswered or rejected. In the same period Mr Williams saw the deceased on very few occasions. The only way he made contact was by visiting the Fairlight property and seeking to obtain entry by using a "password". The deceased did not answer his home telephone or his mobile phone or respond to text messages. The last time Mr Williams saw the deceased was in late January 2012 when he visited after completing an ocean swim.
Ms Duncan and the respondent separately visited the Fairlight home "on average" every two months or so. Ms Duncan usually visited at around lunch time and sat with the deceased at the dining table. Her evidence was that on each of these occasions he was well dressed, his personal hygiene was impeccable and his thoughts were lucid and clear. During his visits after 2006, Mr Wynn would sit with the deceased in the lounge room. The deceased declined his invitations to leave or meet outside of the house.

The appellant's relationship with the deceased

In the period from 1996 the deceased had relationships over significant periods of time with several women that involved the provision of sexual services and companionship in return for payment. Those women included the appellant, Ms Christos, Ms Gillian Crighton and Ms Denise de Bono. The deceased's contact with Ms Christos extended over a period from at least 2000 to 2006. The appellant knew Ms Christos because they worked as prostitutes at the same establishment in Sydney called the Penthouse. The appellant also knew Ms de Bono (by the Christian name, Nicole) because they had both worked at the Daily Planet, a brothel in Melbourne.
Before the primary judge and in this Court, the appellant's case addressed her relationship and dealings with the deceased over three periods. The first was from August 1997 to October 2000, the second from June 2001 to August 2006 and the third from November 2010 to February 2012. Between the second and third of these periods, there was little or no contact or communication between the appellant and deceased, which is perhaps not surprising because from that time the deceased ceased seeing and communicating with anyone other than Ms Duncan and the respondent, and even then only for the purpose of giving instructions as to the management of his financial or equine interests.

The first period from August 1997 to October 2000

The appellant met the deceased whilst she was working at the Daily Planet in Melbourne. In October 1996 she travelled to Sydney and commenced work at the Penthouse. From then until June 2001 the appellant lived between Sydney and Melbourne. When in Sydney, she stayed in a hotel or in an apartment or flat in the Kings Cross or Paddington areas. During these periods she would accompany the deceased and provide sexual services to him on weekends, usually staying at the Fairlight property and sometimes travelling with him to the Blue Mountains or elsewhere. In return for her doing so, the deceased provided the appellant with cash at the end of each weekend in varying amounts (usually between $500 and $1000). He did so by placing the money in her jacket or handbag. The appellant continued to work at the Penthouse on some weekdays and on weekends or in periods when the deceased was away from Sydney.
For a period from May 1997 and after a confrontation with Ms de Bono who claimed also to be having a relationship with the deceased, the appellant returned to work at the Daily Planet in Melbourne. The deceased requested that she return to Sydney and she did so, working again at the Penthouse. She continued to accompany the deceased on weekends, often staying at Fairlight. The relationship continued in this way until October 2000 when there was a confrontation between Ms Christos and the appellant in which Ms Christos described the appellant as the deceased's "weekend girl". The appellant resumed her work at the Daily Planet in Melbourne. After a short period she resumed seeing the deceased, travelling to Sydney on weekends and staying at Fairlight. That is the end of the first period.

The second period from June 2001 to August 2006

In about May 2001 the deceased arranged for the appellant to rent an apartment in Sydney at Kirribilli. The appellant signed a lease and the deceased gave her sufficient money to pay the bond and the first four week's rent in advance. He also showed the unit to Mr Britton, who had first met the appellant in 2000. Over the next five years or so, whilst the appellant was living in the Kirribilli unit, Mr Britton visited there with the deceased on three or four occasions. Mr Britton recalled the deceased saying around the time that the unit was leased that "he wouldn't have any of the ladies living in his home permanently" so had set the appellant up in the unit: Judgment 27. The appellant lived in the Kirribilli unit until September 2006, when she moved to Perth.
The deceased rarely stayed at Kirribilli and the appellant agreed that it was her "permanent residence" for five years. As before, she accompanied the deceased on most weekends, either staying at Fairlight or travelling further afield. Very occasionally they would spend a weeknight together. The deceased continued to provide cash to the appellant, often placing it in a drawer in the flat.
Several times during this period the appellant returned to work at the Penthouse. In particular, she did so on at least two occasions after Ms Christos had telephoned and said that she was still spending time with the deceased. In cross-examination the appellant agreed that she had been told on a number of occasions that the deceased was having relationships with other women, and agreed with a description of him as a "serial offender". She then explained that she went back to work to preserve her "independence" because she was not "going to just take his money".
In November 2005 the deceased gave the appellant a ring and suggested that she wear it on her left-hand ring finger. He never used the word "engagement" to describe this ring, either to the appellant or to any other witness, on this or on any other occasion. On the same evening they went out for dinner. The appellant described her recollection of what she thought at the end of that dinner: "I was unsure as to what Michael meant by the gift of the ring however I did not ask him anything about it because I did not have the confidence to ask him what he meant by it".
The appellant agreed that in this period Ms Christos "would send [her] texts about what a great time [she and the deceased] had been having at this hotel or that spa or a day at the races". In mid-2006, the appellant received another telephone call from Ms Christos in the early hours of the morning in which she said she had just returned from a cruise with the deceased and was telephoning from the Fairlight house. A few days later the appellant visited the house and had an angry exchange with the deceased, at the conclusion of which the appellant said, referring to the unit at Kirribilli, "Just take me home, just take me home".
Following the incident involving Ms Christos and the garbage bins (see [16] above), the deceased requested that the appellant stay away from him. At this time he stopped paying her any money. The appellant moved to Perth to work in a brothel known as Club 316. Later in 2006 the appellant had a further conversation with the deceased when she visited the Fairlight property unannounced. He told her "you have to go". The appellant returned to Kirribilli and then to Perth. She continued to pay rent on the Kirribilli unit until January 2010, when it was damaged by water.

The third period from November 2010 to February 2012

The appellant's uncorroborated evidence was that she made attempts to contact the deceased between 2006 and late 2010, but was unsuccessful. She visited the Fairlight house and knocked on the windows and doors but got no response. She also attempted unsuccessfully to contact the deceased by telephone and text message.
In November 2010 the appellant visited the Fairlight property and gained entry through the kitchen door at the rear. She found the deceased "in an emaciated state living in deplorable conditions": Judgment 17. She began the significant task of cleaning the Fairlight house and nursed the deceased back to health. Her evidence was that in the period from 20 November to 14 December 2010 (when she returned to Perth) she spent over 12 hours a day cleaning the house and caring for the deceased, attending to his personal hygiene, and preparing meals. Whilst doing so, the appellant stayed with a friend (Deidre) in her apartment at Neutral Bay. The appellant purchased items for the deceased including a mattress, washing machine, dryer, vacuum cleaner, pillows, a doona, mattress protector, toaster, microwave oven and kettle: Judgment 17.
The primary judge accepted the appellant's evidence as to the assistance she gave the deceased in this latter part of 2010: Judgment [22], [35]. Her evidence was to some extent corroborated by Mr Britton who agreed that she had reported to him over the telephone how she had found the deceased, and informed him of the deceased's condition from time to time.
When she returned to Perth the appellant resumed work at Club 316. She was next in Sydney on 24 December, staying at a guest house at Manly. She remained in Manly until 11 January 2011 when she again returned to Perth. Whilst she was in Sydney on this second occasion the deceased gave her approximately $850 which she used, in part, to purchase items for the house including food: Judgment 34. Over the following period, the appellant returned to Sydney for periods of about a week, on each occasion cleaning the house and preparing meals for the deceased. She flew back to Sydney in February and March 2011, staying at the same guest house. From there she attended Fairlight daily, preparing meals, cleaning the house and washing and ironing the deceased's bed linen and clothes.
The appellant next returned to Sydney in July 2011. In the intervening period, according to the appellant's evidence, she arranged for Ms Joanne Dan, a friend of the deceased, to visit him. Ms Dan reported that the deceased was "looking after himself" and that they had been out for coffee on a couple of occasions. When she arrived in July the deceased agreed that the appellant could stay on a couch in the downstairs living room of the Fairlight house because she had an injury to her right hip that made it difficult for her to travel to Fairlight each day. The appellant stayed for 10 or so days. She was next in Sydney for 11 days in October 2011 and then for two periods in December 2011, the second ending in mid-January 2012.
The appellant agreed in cross-examination that whilst she was staying at Fairlight for periods after July 2011, the deceased was still "ignoring" her and only communicated with her when she was in the house "standing near him or sitting near him". She gave no evidence of any outward indication on his part of affection towards her.
There were two occasions around this time that the deceased had visitors from "outside". On 7 December 2011, the deceased turned 60 and Ms Duncan and Mr Tompson visited him for lunch. Also, the appellant arranged for Mr Britton and Mr Tompson to visit Fairlight for a barbecue on New Year's Day 2012.
In mid-January 2012 the deceased fractured his right arm and eventually had surgery to repair it. On 20 January the appellant returned to Perth. In mid-February, Ms Dan contacted her and advised that there were no lights on at the Fairlight property at night. Arrangements were made for the police to visit the house and the deceased's body was discovered on 16 February 2012.

The grounds of appeal

The appellant challenges the primary judge's principal conclusions in relation to the three eligibility questions:

That she was not living in a de facto relationship with the deceased at the time of his death (ground 1.1);
That she was not living in a close personal relationship with the deceased at the time of his death (grounds 1.3, 2.3, 3.1); and
That she was not wholly or partly dependent on the deceased, and not a member of the same household, at any time during the second or third of the periods (grounds 1.2, 2.2).

The appellant also challenges particular findings of fact said to be relevant to the resolution of these questions (grounds 1.4 and 2.4).
The remaining ground of appeal (ground 2.1) is that the primary judge erred in failing to hold that the appellant was living in a de facto relationship with the deceased before August 2006 and that that relationship was re-established by the time of the deceased's death. The appellant argues that when determining whether there was such a relationship at that later time, the primary judge should have "accumulated" any de facto relationship which existed in an earlier period. Similar arguments are made by grounds 2.3 and 3.1, which assert that the primary judge erred in failing to "accumulate" any relationships existing in the first and second periods when determining whether the appellant was living in a close personal relationship with the deceased at the time of his death.
Each of these grounds (2.1, 2.3 and 3.1) raises a false issue. Whilst it may be accepted that the nature of the relationship at the time of the deceased's death will be informed and explained by what proceeded it, the fact that one of the relationships contended for may have existed at an earlier point in time is otherwise irrelevant to the eligibility question raised by grounds 1.1 and 1.3. That is not to say that the nature of any relationship at an earlier point in time would not also be relevant when assessing the questions arising under ss 59(1)(b), (c) and (2), namely, whether there are factors warranting, whether adequate provision has been made and as to what adequate provision ought to have been made.
I propose first to consider the challenges to the primary judge's conclusions concerning the relationship between the parties at the time of death and the contested findings of fact said to be relevant to those conclusions. I will then consider the challenges to his Honour's conclusions as to the appellant's lack of dependency and membership of the same household as the deceased.
As will become apparent it is my view that the primary judge did not err in dismissing the appellant's claim that she was an eligible person within s 57(1)(b), (e) or (f).

Were the appellant and the deceased living in a de facto relationship at the time of his death?

Relevant statutory provisions

The expression "de facto relationship" is defined in s 21C(2) of the Interpretation Act 1987 (NSW): (2) Meaning of "de facto relationship" For the purposes of any Act or instrument, a person is in a de facto relationship with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. … (3) Determination of "relationship as a couple" In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of their common residence, (c) whether a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

Reasoning of the primary judge

The primary judge concluded at [44] that the appellant and the deceased were not living in a de facto relationship at the time of his death. That assessment was informed by the summary at [34] of the appellant's evidence as to her relationship with the deceased in the relevant period: As at the deceased's death the relationship (however characterised) had recommenced in November 2010 after approximately 4 years in which the plaintiff and the deceased had no contact. In the third period, on the plaintiff's evidence: (1) The relationship in this period had a duration of 15 months. Because it followed a four-year absence of any relationship and because its nature seems to have been wholly different, it ought be viewed independently of the second period and a fortiori the first period. (2) There was no sexual relationship at all in the third period. (3) The plaintiff often stayed at Fairlight whilst in Sydney but she was there for short periods spending the great bulk of her time in Perth where she worked full time as a prostitute and where she resided. Mr Ellison provided the Court with a summary of the plaintiff's movements based on evidence before the court which summary was not challenged. Not only did she spend the bulk of her time in Perth, even when she was in Sydney she did not always stay at Fairlight. (4) The plaintiff did not provide any money to the deceased and the deceased did not, throughout the third period provide any money to her other than an amount of $850 - there was no financial dependence or interdependence. There was no mingling of assets at all. There was no joint ownership or acquisition of property. (5) She did purchase some items for the house to which I have earlier referred but she claimed those items as her own and recovered them from the executor after the deceased's death. I am unable to accept the plaintiff's evidence that she did that (accompanied by her solicitor) because she had become "stupid with grief": T141.15. (6) She cooked meals and provided domestic assistance to the deceased whilst she was in Sydney. (7) She provided care in November and December 2010 to the deceased that helped bring him from a woeful condition to a reasonably good condition. I find based on Ms Duncan's evidence that the deceased had returned to reasonable health within a period of no more than four to five weeks. (8) She arranged for friends of the deceased to come to a lunch at Fairlight on New Years Day 2012. (9) When she needed to stay in Sydney in connection with her hip problem she asked the deceased's permission to stay at his house (T135.22-31 and see Exh A1, p 62 para 164 of the plaintiff's first affidavit). (10) She had an argument with the deceased in mid January 2012 following which she went to Perth. She told Mr Williams (on her evidence) that she and the deceased had had "a huge fight", that "Michael's really done it this time. He has gone too far. I need to go back to Perth but I will be coming back to Sydney to see Michael. But I am so angry with him that I am not sure I can forgive him this time" (Exh A1 p 142, para 52). Mr William's recollection is that she told him the deceased had "refused her offer" and she was going home to Perth (Exh A1 p 234, para 33). She did say in her evidence that the tension between them ended and the relationship returned to what it was. (11) There were no children of the relationship and hence no care or support by the plaintiff of any children. (12) The "public" aspect of the relationship was virtually non-existent and the reputational aspect was extremely limited as well since the deceased was a recluse and the plaintiff was working as a prostitute in Western Australia. I have referred to the fact that Mr Wynn never met the plaintiff until the funeral and Ms Duncan only met her once and in the third period. (13) She was rebuffed or not encouraged when, on her case, she sought to involve herself in the deceased's care.
The primary judge then made further observations about the nature and quality of the relationship. First, he considered that whilst the appellant had provided personal care up to January 2011 and continued to provide domestic assistance to the deceased after that time, the deceased did not encourage her to stay at Fairlight or treat her as a close friend whose support and attention he welcomed or desired: Judgment [35]. He continued: … [The deceased] had become a recluse and, on one view, he tolerated her presence (which for at least some of the time was for her own purposes due to her hip problems) in return for her cooking and domestic duties provided when she was in Sydney. The deceased did not return her calls from Perth, when according to her she rang him or sent sms messages to him except when she messaged him she might need an operation on her hip. He did not contribute to the costs of any treatment at any time in the third period.
Secondly, the primary judge rejected the respondent's submission that the deceased's will had been overborne by the appellant during the third period and that this explained why he permitted her to stay at Fairlight when she was in Sydney: [38]. It did not however follow that the deceased did more than tolerate her presence.
Thirdly, with respect to the appellant's evidence concerning the argument in mid-January 2012 (see 34 extracted above) (which followed the fracture to the deceased's right arm), the primary judge observed (at [36]) that the absence of an explanation as to what the "offer" was which (according to Mr Williams' evidence) had been refused: … suggests that contrary to the case that [the appellant] puts, whatever relationship that existed in the third period had also come to an end before his death. She gave an explanation in cross-examination that the deceased's refusal to have proper care for his arm was him going too far, or was something for which she could not or might not be able to forgive him which seems very unlikely. Her explanation of why she had told Mr Williams that she was going home to Perth was unconvincing and did not explain the offer which I find she told Mr Williams she had made and which she said the deceased had refused.
Fourthly, the primary judge was not prepared to accept uncorroborated the appellant's evidence that before the deceased had injured his arm there was a conversation in which the deceased asked her to "get out of the industry … [and] live here permanently". That evidence is set out by the primary judge at 17. His Honour noted at [39]: … even accepting that there was discussion about them going into business together, I do not have sufficient confidence in the veracity of the [appellant] to accept without any corroboration whatsoever that the deceased told her he wanted her to live in the house permanently.
Fifthly, the primary judge found that in this period there was no romantic aspect to the relationship between them: [41]. Furthermore, he rejected the appellant's submission that the lack of any evidence that she had pressed the deceased for a more permanent and settled relationship was explained on the basis that she was "poorly educated" or from a "different strata of society" or merely shy: Judgment [42].
Finally, and to some extent by way of response to the appellant's "accumulation" argument (see [40]-[41] above), his Honour considered that the complete lack of involvement of the deceased in the upkeep of the appellant in the period from August 2006 to November 2010 demonstrated "that whatever relationship [they had in that second period] was over in every respect from [the deceased's] point of view". His Honour also was not persuaded that it was not over from the appellant's point of view: [43].

The challenges to specific findings of fact

By her grounds of appeal and argument the appellant challenges the following findings said to have been relevant to the primary judge's conclusion that there was no de facto relationship at the time of the deceased's death:

That the deceased had returned to reasonable health by January 2011, so that no "personal care" was provided after that time (grounds 1.4.5, 1.4.6);
That whatever relationship had existed during the third period had come to an end before the deceased's death (ground 1.4.1);
That the appellant had not established that the deceased had told her in early 2012 that he wanted her to live permanently in the Fairlight house (ground 1.4.2);
That there was no romantic aspect to the relationship in this third period (ground 1.4.3);
That whatever relationship existed before August 2006 was over as and from August 2006 (ground 1.4.4);
That the appellant only spent 54 days during the third period attending the Fairlight property and supporting the deceased (ground 1.4.7).

As to when the deceased returned to reasonable health and "personal care" ceased to be provided: this finding has greater significance for the appellant's case that she and the deceased were living in a close personal relationship, a part of which involved her continuing to provide him with domestic support and personal care after January 2011. At [55] the primary judge recorded that he was not satisfied that the appellant was providing personal care to the deceased after that time. That conclusion proceeds from the finding at 34 that the deceased had returned to reasonable health.
The evidence was that after January 2011 the appellant spent further time visiting and providing support in February (eight days) and late March 2011 (nine days). On each of these occasions she stayed at the guest house in Manly. She next returned to Sydney from Perth in mid-July 2011 (12 days) and stayed at Fairlight, because of her hip problem, sleeping on a couch in the downstairs living area.
The appellant's evidence was that in July 2011 she "assisted" the deceased each day and "attended" upon him once or twice during each night. Later, at the time of her visit in October 2011 (11 days), the appellant described the deceased's "health and stamina" as having improved and him as only calling on her during the evenings to get him a drink or to talk to him. That was consistent with Ms Dan having reported from about March 2011 that the deceased was "looking after himself", "looking better" and that they had been out for coffee.
The primary judge's finding that the deceased had returned to reasonable health by January 2011 was based on Ms Duncan's evidence: Judgment 34. That evidence was that she visited the deceased at Fairlight on 22 December 2010 and that on each occasion that she visited him he was well presented and lucid and clear in his thoughts. Ms Duncan also gave evidence that when she visited the deceased on 1 August 2011 he was quite well and able to discuss coherently and in detail the mating programme for his horses.
In the face of this evidence, the primary judge's finding is not shown to have involved error. The appellant's evidence as to any personal care provided from February 2011 was vague and uncorroborated. The finding that she was not providing care after that time was not glaringly improbable. Nor was it inconsistent with any incontrovertible fact. On the contrary, it was supported by Ms Dan's evidence (see [34] above) and the evidence of ATM withdrawals made from the deceased's Westpac account. During the first six months of 2011, there were 10 such withdrawals.
As to whether any existing relationship had come to an end in early 2012 and before the deceased's death: the primary judge did not make a finding in these terms. Nor did his Honour reject the appellant's case that she was living in a de facto or close personal relationship with the deceased at the time of his death on the basis that whatever relationship had existed had come to an end: Judgment [36], [44], [56]. This makes it unnecessary to address this ground. I will nevertheless do so because both parties took the position in argument that his Honour had made such a finding and subsequently taken it into account.
It is necessary to put the relevant incident in context. In early January 2012 the deceased had a fall and injured his right arm. Initially he rejected the appellant's advice that he see a doctor. After two days or so he saw a doctor, the arm was confirmed as broken and he underwent surgery at Manly Hospital, staying overnight. The conversation between the appellant and Mr Williams to which the primary judge refers at 34 (which is extracted at [45] above) was said to have occurred on the day after the appellant had collected the deceased from hospital and brought him back to Fairlight.
In the afternoon on the day of his return, the deceased had undertaken tasks around the house and the appellant became concerned that he would further damage his arm. At one stage she telephoned the hospital. There was then an exchange in which the deceased said that she "should not be calling the hospital". The appellant became upset and the deceased accused her of "putting on a designer hissy fit". In cross-examination the appellant maintained that the reason she had become angry was that the deceased was not looking after himself. However she maintained that after a couple of days she calmed down and that they were getting on well by 20 January 2012, when she travelled back to Perth.
The appellant's evidence did not, as the primary judge observed at [36], explain what the "offer" was that Mr Williams' recalled. Accepting that was so, there remained objective evidence which was consistent with the position being that whatever relationship existed had not come to an end, at least as far as the appellant was concerned. That evidence included that she stayed at the Fairlight property for a few days before returning to Perth; that on 15 February 2012 she purchased a ticket for travel from Perth to Sydney on 22 February 2012; and that it was her concern for the deceased following email communications with Ms Dan that led to his body being discovered by the police on the morning of 16 February 2012. In the light of that evidence the primary judge would, in my view, have been in error to decide the appellant's claims on the basis that any relationship had ended before the deceased's death. However, as I have indicated, the primary judge did not make that finding or proceed on that basis.
As to whether the deceased told the appellant that he wanted her to live at Fairlight permanently: the primary judge's reason for not accepting the appellant's evidence (see Judgment [17]) was that it was not corroborated, he having formed an adverse view as to the reliability of such uncorroborated evidence: [22], [39]. That assessment was based on matters referred to by the primary judge in [21] and is not challenged. It follows that his Honour did not err in giving this evidence no weight.
As to whether there was no romantic aspect to the relationship: this finding of the primary judge was also justified. It refers, not to the absence of any sexual relationship, but more generally to the absence of any outward signs of affection between the appellant and the deceased. It is sufficient to refer to six aspects of the evidence which support his Honour's conclusion. First, when the appellant wanted to stay at Fairlight in July 2011 because of her hip condition, she had to ask for the deceased's "permission" to do so and would not have done so if he had said no. Thereafter she slept on a couch and later an airbed. At no time before he died did the deceased suggest that other arrangements be made for her comfort. Secondly, right up until the time of his death the deceased did not acknowledge or respond to the appellant's text messages or telephone calls. In this respect he treated the appellant in the same way that he treated everyone other than Ms Duncan and the respondent, who were looking after his personal affairs.
Thirdly, by December 2011, and notwithstanding that the appellant had been caring for the deceased off and on since November 2010, he continued to ignore her and only spoke to her when she was standing near him or sitting close by. Fourthly, the deceased refused through the whole of the third period to leave the house with the appellant, notwithstanding her requests that he do so. He did, however, leave the house to have coffee with Ms Dan and to make bank withdrawals.
Fifthly, at the deceased's 60th birthday party in December 2011, which was arranged by the appellant, the deceased introduced her as "Janet" and thereafter made no further mention of her in any conversation with his friends - Mr Williams, Mr Britton and Ms Duncan. Nor did she stay to participate with them in celebrating the occasion. Finally, the appellant gave no evidence of any statements or introductions made by the deceased in the presence of others which suggested affection towards her.
As to whether any relationship that existed before August 2006 continued after that time: the appellant's evidence was that she did not speak to the deceased between November 2006 and November 2010, a period of four years. In the last conversation they had in November 2006 he told her "to go": Judgment 17. After that he did not reply to any of her telephone calls or text messages. The appellant lived in Perth, working at Club 316. Until January 2010 she also maintained the Kirribilli unit. She did not seek or receive, as she had previously, any financial assistance from the deceased, either to pay rent or for any other purpose. In the circumstances the finding of the primary judge was plainly correct.
As to whether the appellant only spent 54 days during the third period attending the Fairlight property and supporting the deceased: this ground is directed to the primary judge's finding at [55] that the "plaintiff was living and working in Perth - she spent 54 days in Sydney at Fairlight out of a total of 458. Of these 458 days she spent 51 in Sydney but not always at Fairlight". The first of these findings - that she spent 54 days staying at Fairlight - was correct. The second, which concerns the further number of days spent in Sydney but when not staying overnight at Fairlight, was also correct in the sense that it was in accordance with the evidence before the primary judge (Ex 2). During the argument of the appeal that exhibit was "revised" to increase that number of days from 51 to 59. That increase was not material and, more relevantly, did not establish any error on the part of the primary judge.

The challenge to the conclusion that the appellant and the deceased were not living in a de facto relationship at the time of the deceased's death

The primary judge is not shown to have erred in the findings as to factors taken into account in assessing whether there was a de facto relationship as at February 2012. Nor in my view did his Honour err in concluding that the appellant and deceased were not living together in such a relationship at that time.
Whilst the appellant spent time living in close physical proximity with the deceased for several short periods over the 15 months from November 2010, both during the daytime and overnight, they were not in any real sense "living together" as a couple. There was no evidence suggesting mutual commitment to a continuing and permanent shared living arrangement. On the contrary, the appellant was permitted to stay in the house intermittently so as to enable her to more easily provide what was essentially domestic care. At the end of each period, she then returned to Perth where she lived permanently and worked.
The appellant obviously cared for the deceased and behaved as a decent friend would in helping to restore him to health. She also may be seen to have been thoughtful and a positive presence at Fairlight, for example purchasing Christmas gifts for the deceased. However, he showed no particular gratitude for that kindness and assistance and appears to have treated the appellant as if she was little more than an arm's length provider of domestic services. The deceased would not venture outside the house with her and did not, on the few occasions when there were visitors to the house, involve her as might be expected of a couple living together. The evidence did not disclose that their relationship extended beyond what was necessary for the appellant to provide domestic care whilst in Sydney.
Notwithstanding that, as the primary judge observed at [38], their relationship was "unusual and difficult to characterise", it did not involve the intimacy, mutuality and commitment which are important aspects of a de facto relationship.

Were the appellant and the deceased in a close personal relationship at the time of his death?

Relevant statutory provisions

Subsections 3(3) and (4) of the Succession Act provide that: (3) For the purposes of this Act, a close personal relationship is a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care. (4) For the purposes of subsection (3), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee and reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation).

Reasoning of the primary judge

The primary judge concluded at [55] and [56]: I accept that the plaintiff did provide domestic support to the deceased in the period November 2010 to his death. I accept that she provided personal care in the period late November 2010 to at least December 2010. What I am not satisfied of is that the parties were "living together" in that period or that she was providing personal care to the deceased after January 2011. The plaintiff was living and working in Perth - she spent 54 days in Sydney at Fairlight out of a total of 458. Of these 458 days she spent 51 in Sydney but not always at Fairlight. From 20 November 2010 to 6 July 2011 she did not stay at Fairlight and in April, May and June 2011 she did not visit Sydney at all, and she did not stay any time at Fairlight in August, September or November 2011 (or even come to Sydney). I have earlier referred to the fact that she had asked the defendant's permission to stay at Fairlight, that she slept on the sofa on many of the nights she was at Fairlight and always in a separate room, and even accepting that the plaintiff stayed at Fairlight on many of the occasions she was in Sydney, I am not persuaded that the plaintiff and the deceased were "living together" in the usual sense of those words in the third period.

The challenges to specific findings of fact

The appellant challenges two findings of fact specifically relevant to the conclusion that she and the deceased were not living in a close personal relationship at the time of his death. Those challenges are made by grounds 1.4.6 and 1.4.7 and are dealt with in [53]-[57] and [67] above. The primary judge did not err in either of the respects contended.

The challenge to the conclusion that the appellant and deceased were not living in a close personal relationship at the time of his death

The primary judge was not satisfied that during this period the appellant and deceased were living in a close personal relationship. I do not think that his Honour erred in so concluding.
The notion of living in a close personal relationship focusses on the nature and quality of the relationship between the people said to be living together. The definition in s 3(3) expressly requires that their doing so involve at least one of them providing the other with domestic support and personal care, implicitly as part of their ongoing close personal relationship.
It may be accepted that the activity of living together does not require that the living occur at or from a single place or that the relevant people spend all of their time living together at that place or those places. However, the expression describes a relationship that has an ongoing aspect of closeness or intimacy about it that is not necessarily physical or sexual.
The relationship between the appellant and the deceased in this third period did not answer that description. They were living together in close physical proximity for convenience with one staying with the other so as to provide personal care and domestic support for a short period and thereafter domestic support alone. The relationship did not extend beyond an unspoken arrangement that this should occur and there was little or no ongoing interaction or sharing of the kind one would expect of two persons living together in a relationship.
The appellant's residence remained Perth, where she worked and to which she returned at the end of each short period in Sydney. The kind of domestic support which the appellant was providing could have been provided, as it was initially, by someone who was not residing at Fairlight. The fact that the appellant provided that support for weekly periods over the 15 months did not constitute the relationship as one that involved the closeness or intimacy necessary for a close personal relationship.

Was the appellant a member of the same household as the deceased and wholly or partly dependent on him?

Relevant statutory provisions

The persons eligible by s 57(1)(e) to apply for a family provision order include: (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

Reasoning of the primary judge

The primary judge addressed the questions of membership of a household and dependency in the period June 2001 to August 2006. He concluded at [50]: It is clear that the only period in which the plaintiff could possibly meet this requirement is between 2001 and 2006, when the deceased provided, on the plaintiff's case, between $500-$1000 a week for her upkeep, including rental at the Kirribilli apartment. As I have said it is difficult to have any confidence about what was paid to the plaintiff but there can be no doubt that the deceased did assist her with her rent of the Kirribilli apartment for much of the second period. I think, as she declared in her tax return for at least one of the years in the second period, she was during the second period in effect receiving income from the deceased in return for sexual favours, and was not a member of his household.
He rejected the argument that the appellant was financially dependent on the deceased holding that she was not because she was free and able to resume her work, whether at the Penthouse, or in some other place, "whenever she chose to do so": Judgment [51].
The primary judge also was not satisfied that the appellant was a member of the deceased's household during this period: Judgment [52]. His Honour reasoned: … He set her up in a separate apartment and did not want anyone living at Fairlight on a permanent basis as he told Mr Britton. I accept that the plaintiff did on occasions stay over at Fairlight but the fact that throughout the period he helped find the separate apartment and their lack of any discussion of her moving in with him rather tells against her being a member of the same household. The cessation of the relationship without any arrangement by the deceased to maintain the Kirribilli apartment, assist with its rental, and the plaintiff's continued maintenance of the apartment after their parting company in 2006 without any such assistance from the deceased reinforces the conclusion to which I have come.
His Honour also concluded that there was no financial dependence or interdependence during the 15 month period before the deceased's death: Judgment 34. He did not make any finding that the appellant was a member of the household at Fairlight during this period.
Each of these conclusions is challenged. I will first address the period from June 2001 to August 2006 and then the period from November 2010 to February 2012.

No dependency in the second period

The appellant challenges two findings said to be relevant to the primary judge's conclusion that she was not wholly or partly dependent on the deceased during this period. They are:

that because the appellant was free and able to resume work, she was not wholly or partly dependent, although the deceased was paying up to $1,000 per week to assist her in meeting rent and other expenses (ground 2.4.3); and
that the money provided by the deceased to the appellant was money paid "in return for sexual favours" (ground 2.4.5).

These grounds may be dealt with together. The second of these findings is not material to the question of dependency. It was based in part on the fact that the appellant's taxation return for the year ending 30 June 2006 declared as income $45,000 which, for the most part, must have been paid to her by the deceased. The appellant's evidence was that this return was prepared by her accountant and that, based on his advice, she believed it to be accurate. No similar declarations were made in respect of money received from the deceased in the four years preceding that tax year. The fact of this return supports the characterisation of the money paid to the appellant by the deceased as being, and known by each of them to be, in exchange for her services, understood more broadly as her time and company.
More relevantly, however, the appellant's evidence confirmed that during this second period she was not and did not regard herself as financially dependent on the deceased. When the deceased had relationships with other women which came to her attention, the appellant went back to work at the Penthouse. She agreed that there were a number of occasions on which this occurred. On such occasions she did so "preserve … [her] independence".
The appellant's position was quite unlike that of Mr McKenzie in McKenzie v Baddeley [1991] NSWCA 197, who was dependent on Mr Burton for the ability to grow vegetables on Mr Burton's land and then to sell them. Here, as the primary judge held, the appellant was free and considered herself able to resume work at any time that she chose and, in doing so, to earn the same or more than she was being paid by the deceased. None of this was consistent with any mutual and ongoing commitment between them. The primary judge did not err in concluding that the appellant was not financially or materially dependent on the deceased at any time during this period.

Not a member of the deceased's household in the second period

The appellant challenges the conclusion that during this period she was not a member of the deceased's household, either at Fairlight or at Kirribilli (grounds 2.4.6, 2.4.7, 2.4.8). In Porthouse v Bridge [2007] NSWSC 686, Bryson AJ described at [20] the concept of membership of a household as connoting a degree of continuity and permanency of mutual living arrangements. In doing so he repeated what had been earlier said by McLelland J in Munro v Lare (Supreme Court (NSW), 8 February 1991, unrep).
The appellant makes two submissions. The first is that the Kirribilli apartment was an additional and separate household of the deceased that was maintained by and at his discretion and that she was a member of that household. The second is that the appellant was a member of the Fairlight household, by virtue of her staying overnight at that property on most weekends. Each of these arguments should be rejected.
The lease of the Kirribilli apartment was taken by the appellant. That household was in no sense maintained by or at the discretion of the deceased as became plain after August 2006 when the appellant continued to keep the residence and pay the rent from her own earnings, without the deceased's assistance.
Although the appellant stayed at Fairlight on most weekends, in circumstances where she was receiving money from the deceased for her companionship, she was not someone who had an ongoing and permanent living arrangement with respect to the house so as to be a member of the household. The appellant was a visitor, her purpose being that of accompanying the deceased. The primary judge did not err in concluding that she was not a member of that household at any time during this period.

No dependency and not a member of the deceased's household in the third period

The primary judge's conclusion that there was no financial dependence after November 2010 is challenged. It is submitted that the appellant and deceased were at least partly dependent on each other, the deceased for food and other necessities and the appellant for accommodation. To that extent it is said their financial position was "interrelated and interdependent".
There was no real sense in which there was any financial dependence between them as a result of the assistance provided by the appellant to the deceased from November 2010. On each occasion that she returned to Perth the appellant continued to work. She did not require or seek any financial assistance from the deceased to compensate her for the occasions when she was in Sydney. Nor did she need financial assistance by way of accommodation during any of those periods. She only stayed at the Fairlight property for convenience as a result of her hip problem.
Nor did the deceased depend upon financial assistance from the appellant for the purchase of food and other necessities. He plainly had access to significant funds. The fact that she purchased items that were available for use in the Fairlight property did not give rise to any dependency between them. The challenge to the primary judge's finding is without merit.
Finally, it is submitted the primary judge should have held that the appellant was a member of the Fairlight household in the period before February 2012. From July 2011, the appellant spent about eight weeks at the Fairlight property. At the same time, her primary place of residence remained in Perth where she lived and worked. There is nothing in the evidence which indicates any degree of continuity and permanency about the arrangements by which she stayed at Fairlight. To the contrary, she was spending intermittent and short periods at Fairlight and for the limited purpose of providing domestic support to the deceased. In doing so she never became a member of that household.

Conclusion

The primary judge did not err in dismissing the appellant's claim on the basis that she was not an eligible person under s 57. That conclusion makes it unnecessary to address the three questions outlined in [7] above.
During the course of the hearing in this Court, Mr Britton's solicitor filed a notice of motion seeking to be joined as a party to the proceeding so as to address briefly on those questions. In circumstances where the appeal is to be dismissed, that application also should be dismissed with no order as to costs.
The appeal should be dismissed with costs.
GLEESON JA: I agree with Meagher JA.

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: 22 September 2015

Overview

The appellant claimed to be an eligible person on three bases, two of which were necessarily in the alternative. They were that she was a person with whom, at the time of his death, the deceased was living in a "de facto relationship" (a defined term requiring reference to the Interpretation Act 1987 (NSW), s 21C(2)) (s 57(1)(b)), or in a "close personal relationship" (a term defined in s 3(3) of the Succession Act as excluding de facto relationships) (s 57(1)(f)). She also claimed that she was, at some time, wholly or partly dependent on the deceased and, at that or any other time, a member of the same household as the deceased (s 57(1)(e)).
The respondent is the executor of the deceased's last will dated 18 July 1996. He contested the appellant's claim that she was a person eligible to apply for a family provision order and also contended that if she were such a person by reason only of s 57(1)(e) or (f), the Court could not be satisfied that there were factors warranting the making of her application (s 59(1)(b)).
The primary judge (Rein J) held that the appellant was not an eligible person within any of s 57(1)(b), (e) or (f) and accordingly that she was not entitled to an order for provision under s 59. Her summons for relief was dismissed: Amprimo v Wynn [2014] NSWSC 991. His Honour did not address the questions arising under s 59(1)(b) (factors warranting the application), (1)(c) (adequacy of provision made) or (2) (provision that ought be made).
The appellant challenges the rejection of her claim that she is an eligible person. Two of the bases upon which that claim is put require that the relevant relationship exist at the time of the deceased's death. In relation to the third, the appellant contends that she was wholly or partly dependent on the deceased and a member of the same household, in each case, in one or both of the periods June 2001 to August 2006 and November 2010 to February 2012.
If the appeal is successful the parties ask this Court to address the remaining issues raised by the appellant's application for a family provision order. Those issues are: if the appellant is an eligible person by reason only of s 57(1)(e) or (f), whether there are factors warranting the making of her application (s 59(1)(b)); if the Court is satisfied as to s 59(1)(b), whether the making of no provision for the appellant under the deceased's will was not adequate provision within the meaning of s 59(1)(c); and, if the Court is so satisfied, what order for provision ought be made in accordance with s 59(2). The primary judge did not determine any of these questions.
The grounds of appeal are directed to the primary judge's findings of fact concerning various aspects of the relationship between the appellant and the deceased and his Honour's overall evaluations of that relationship.

At a glance

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Judgment (27 paragraphs)

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Legislation Cited (2)

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Cited By (8)