CHAN -v- WALDEMAR MAZURKIEWICZ (As Administrator of the Estate) [2015] WASC 432 (13 November 2015)

3 Section 15(1) of the Administration Act 1903 (WA) provides that if a person dies intestate leaving a de facto partner but no wife then where the de facto partner and the intestate lived as de facto partners for a period of at least two years immediately before the death of the intestate, the de facto partner shall be entitled, in accordance with s 14, to the intestate property to which a wife would have been entitled had the intestate died leaving a wife. 'De facto partner' is not defined by the Administration Act but s 13A(1) of the Interpretation Act 1984 (WA) provides that a reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between two persons who live together in a marriagelike relationship.

4 Section 13A(2) of the Interpretation Act provides that the following factors are indicators of whether or not a de facto relationship exists between two persons, but are not essential:

(a) the length of the relationship between them;

(b) whether the 2 persons have resided together;

(c) the nature and extent of common residence;

(d) whether there is, or has been, a sexual relationship between them;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(f) the ownership, use and acquisition of their property (including property they owned individually);

(g) the degree of mutual commitment by them to a shared life;

(h) whether they care for and support children;

(i) the reputation, the public aspects, of the relationship between them.

Section 13A(3)(b) provides that it does not matter whether either of the persons is legally married to someone else or in another de facto relationship.

5 The plaintiff's case is that she commenced a de facto relationship with Witold in 1993 which continued until he died on 11 December 2010. Counsel for the plaintiff, Ms HolyoakRoberts, divided the time of their relationship into three periods. The first period is from the commencement of their relationship in 1993 until early 2008. During that period Witold and Mrs Chan cohabited, first in rental accommodation in Herdsman Parade, then in a house belonging to Mrs Chan in Floreat and subsequently in a house belonging to Mrs Chan in Ferndale. In early 2008 Witold's wife, Wanda, became ill and Witold moved back to the Booragoon house to look after Wanda. That marked the end of the first period and commencement of the second period.

6 In July 2008 Wanda died. Mrs Chan says that Witold initially returned to live with her at Ferndale but sometimes stayed overnight at the Booragoon house. After a time Witold spent most of his time at Booragoon. Sometimes Mrs Chan would stay overnight with Witold at Booragoon and sometimes he would stay with her at Ferndale. In August 2010 Mrs Chan learned that her sister in China was ill. Mrs Chan decided to go to China to visit her family. Mrs Chan says that in September 2010 Witold told her that he had arranged for someone to look after him whilst she was in China. Elzbieta Remiszewska, who lived in Montreal and had been in communication with Witold for some months, principally by Skype, arrived in Perth in September 2010 and stayed with Witold at the Booragoon house until he died in December. For convenience I will refer to Ms Remiszewska as Elzbieta. Elzbieta's arrival marks the end of the second period and beginning of the third period.

7 Mrs Chan did not visit Witold at the Booragoon house after Elzbieta arrived. The defendants' case is that Elzbieta's relationship with Witold was not that of a carer. The defendants say that the relationship was an intimate relationship. Mrs Chan left for China on 11 November 2010. Mrs Chan did not see Witold after she left for China. Mrs Chan returned to Perth on 6 December 2010 but did not try to contact Witold until her birthday on 24 December as she says they had arranged before she left. Witold passed away on 11 December 2010.

8 Ms HolyoakRoberts submitted that there are unusual aspects to the third period of their relationship but the de facto relationship did not end because Witold did not communicate to Mrs Chan that the relationship had ended and there was no carrying out of that intention as required by the authorities. The plaintiff says a de facto relationship comes to an end when one party forms the intention to end the relationship, that party acts on the intention and the intention to end the relationship is communicated to the other party.

9 In H v P [2011] WASCA 78 the Court of Appeal considered whether the parties were in a de facto relationship at or subsequent to the commencement of pt 5A of the Family Court Act 1997 (WA) which commenced on 1 December 2002. Murphy JA summarised the trial judge's findings to be that the parties' relationship in the early stages of their relationship may have been 'marriage like' but taking all of the relevant circumstances into account, they were not in a de facto relationship as at, or subsequent to, the relevant date, namely 1 December 2002. Murphy JA, with whom Pullin and Buss JJA agreed, stated a number of relevant legal principles including the following. First, although there may be a number of factors which suggest that a relationship is 'marriagelike', in the end, what is required is an overall assessment of the facts and of all the relevant elements of the relationship: [55]. Secondly, a de facto relationship is inherently terminable at any time and continues to exist only insofar as the indicia which give the relationship its 'marriagelike' character continue to exist: [56]. Thirdly, when a party to a de facto relationship determines that they no longer wish to live in a 'marriagelike' relationship and conducts their life on that basis, the de facto relationship comes to an end: [57]. Fourthly, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than the party asserting separation being required to prove the negatives: [58]. Fifthly, spending time apart is not necessarily fatal to the existence of a de facto relationship; it is open to a judge to conclude in appropriate circumstances that, despite physical separation, there are sufficient other factors present to indicate the existence of a de facto relationship: [73].

10 The multifactoral test propounded by the Court of Appeal is difficult to apply. Marriage relationships are many and varied. Australia is culturally diverse. The characteristics of marriage vary from culture to culture and can change over time. Residing together is a characteristic of most marriage relationships but some spouses have an intimate relationship but live at separate addresses usually because of constraining circumstances such as working at different locations. For some couples, sexual relations are very important. For others, that aspect may be less important than companionship. In some marriages there is a complete blending of finances and property. In others, spouses keep their property and finances totally separate and in still others one spouse may totally control those aspects of the relationship with the other spouse having little or no knowledge or input. Some spouses have children, others do not. Some spouses do everything together. Others place importance on independence.

11 The principal evidentiary issues concern the extent to which, and the circumstances in which, Mrs Chan and Witold spent time together between about July 2008 and Witold's death, Witold's relationship with Elzbieta and Witold's intention concerning his relationship with Mrs Chan after Elzbieta arrived in Perth. Witold left no statement about those matters or any documents from which inferences can be drawn about them except for Skype communications with Elzbieta to which I will refer later in these reasons. Elzbieta swore an affidavit but declined to give evidence at the trial. Mrs Chan gave evidence and was crossexamined. The defendants challenge significant parts of Mrs Chan's testimony.

12 It is necessary to approach Mrs Chan's evidence with caution. Mrs Chan is the only witness to aspects of her relationship with Witold. She has reason to give a version of events which serves to advance her case. Mrs Chan gave evidence in chief by affidavit. The first affidavit sworn by Mrs Chan was on 22 November 2011. Mrs Chan has no notes, diary or other documents to assist her memory of relevant events. The evidence in her affidavit is at a relatively high level of generality. In her affidavit Mrs Chan said that sometime after September 2008 Witold came back to live at the Ferndale house with her. She said that Witold would go to the Booragoon property to use a new computer he had installed there and would sometimes stay overnight and Mrs Chan would often stay with him. She further said that Witold would stay at the Ferndale house with her one or two nights a week and she would do the same at the Booragoon house. In a further affidavit sworn on 10 July 2012 Mrs Chan said that during the period in July and August 2010 when Witold was having difficulties with his leg and stomach she spent most nights at Booragoon with Witold. She says that around the beginning of September 2010 she began to spend more time at Ferndale and Witold would drive to Ferndale and stay with her one or two nights, and that sometimes he would go back to Booragoon to use the computer and sometimes she would go with him.

13 Mrs Chan's answers in crossexamination were imprecise. It was apparent that her evidence of the frequency and duration of the time Witold spent at the Ferndale house and she spent at the Booragoon house were broad generalisations. I place little reliance on the accuracy of Mrs Chan's assertions of the frequency and duration of Witold's visits to the Ferndale house and Mrs Chan's visits to the Booragoon house in 2009 and 2010.

14 As I have said, in her affidavit of 22 November 2011, Mrs Chan said that sometime after September 2008 Witold came back to live at the Ferndale house with her. However, in crossexamination Mrs Chan agreed that from 2008 on Witold regarded the Booragoon house as his home. If Witold returned to live at Ferndale after September 2008 as Mrs Chan said in her affidavit, it could only have been for a short period. That is confirmed by the evidence of Jerzy and his wife, Mariana, which I generally accept. Jerzy's evidence is to the effect that shortly after Wanda's cremation he visited Witold at his Booragoon home and Witold asked Jerzy to visit him as often as possible. Jerzy and Mariana visited Witold regularly at Booragoon after that. At no time did Witold tell Jerzy or Mariana that he was living at Ferndale or spending any significant time there. Jerzy and Mariana visited and contacted Witold at the Booragoon house and, except for an incident when Witold said he had been in St John of God Hospital, Witold was always at the Booragoon house when they contacted him.

15 In her affidavit sworn 12 December 2014 Mrs Chan said that she started to live in the Booragoon property with Witold after Wanda had died. I find that Mrs Chan did not live with Witold at the Booragoon house. Her residence remained the Ferndale house. In her first affidavit of 22 November 2011 Mrs Chan did not say that she started to live with Witold at the Booragoon property. She said that she would often stay with him there and that she would stay at the Booragoon house one or two nights a week. It was put to Mrs Chan in crossexamination that Jerzy had spent a lot of time with Witold at the Booragoon house in 2009 and had not seen her or any sign of anyone other than Witold living in the Booragoon house. Mrs Chan explained that by saying that she seldom stayed at the Booragoon house and when she did all she took with her was a blanket which she took back to Ferndale when she left. She said that all she left at the Booragoon house was a tooth brush, a face towel, slippers and some shampoo. Later she added maybe some times she left some underpants behind. I accept that in the second half of 2008 Mrs Chan visited Witold at his Booragoon house and stayed overnight from time to time. I am not satisfied that Mrs Chan stayed there as regularly as one or two nights a week.

16 I am satisfied from the evidence of Jerzy and the crossexamination of Mrs Chan that in 2009 and 2010 Witold lived at the Booragoon house, Mrs Chan lived at the Ferndale house. I accept that Witold and Mrs Chan each visited the other at the other's house from time to time but that was not a regular occurrence in 2009 and 2010.

17 The defendants tendered in evidence an affidavit sworn by Elzbieta in Canada on 14 November 2012. Elzbieta was not available for crossexamination. The defendants submitted that her affidavit should be admitted into evidence pursuant to s 79C of the Evidence Act 1906 (WA).

18 I find it unnecessary to decide whether the affidavit should be admitted under s 79C of the Evidence Act or, if so, what weight it should be given. I find that the affidavit should be admitted into evidence pursuant to O 36 r 2(3) of the Rules of the Supreme Court 1971 (WA) (RSC). The proceeding was commenced by originating summons. RSC O 36 r 2(3) provides that evidence may be given by affidavit upon any originating summons but the court may order the attendance for crossexamination of the person making such affidavit and if such person fails to attend his affidavit shall not be used in evidence without the leave of the court. If the deponent is not available to be crossexamined, the court in its discretion will consider the particular circumstances, including the nature of the proceedings, and may reject the affidavit or alternatively may give leave for it to be used in evidence, giving it such weight as is appropriate. Where an affidavit is challenged, as Elzbieta's is in this case, and the deponent is not available for crossexamination, the affidavit may either be rejected, or, if it is received, only slight weight may be given to its contents: Re O'Neill (Dec) [1972] VicRp 35; [1972] VR 327 [333] (Anderson J).

19 There are some matters in Elzbieta's affidavit which are corroborated or at least consistent with other evidence. There is evidence that Elzbieta communicated with Witold for some months before she came to Australia in September 2010. There is evidence, which I accept, that Elzbieta's Skype name was Zula555. The Skype communications which are in evidence include that Zula555 intended to travel to Poland and then Australia and to stay with or at least meet Witold. There is other evidence, which I will refer to later in these reasons, which supports or is consistent with statements by Elzbieta in her affidavit. On the other hand there is material in the affidavit which is inconsistent with other evidence. For example, Elzbieta says that she spoke to Witold's cousin, George, on a number of occasions before she met him. George appears to be a reference to Jerzy Mazurkiewicz. However, Jerzy's evidence is that he spoke to Elzbieta for the first time when he met her at the Booragoon house.

20 Elzbieta declined to give evidence by video link. There is no compelling reason why she is not willing to give evidence by video link in her home town to confirm what she said in her affidavit. There is prejudice to the plaintiff in not being able to crossexam Elzbieta about matters to which she has deposed which are inconsistent with the evidence of the plaintiff and matters which are important in this case. In all the circumstances I will receive the affidavit into evidence but I will give slight weight to statements in her affidavit which are contradicted by or inconsistent with other evidence.

21 Witold was born in Poland on 25 February 1947. He married Wanda on 21 December 1974. They migrated from Poland to Australia in 1979. Witold's cousin, Jerzy Mazurkiewicz, was born in Poland and came to live in Perth in 1973. Witold and Wanda lived with Jerzy and his wife, Marianna, for about six months when they first came to live in Perth. Witold and Wanda moved to Koolan Island to work before returning to Perth to live in about 1990. They purchased the Booragoon property in 1987 and lived in the house on the property from about 1990. Jerzy and Marianna visited Witold and Wanda at their Booragoon house from time to time.

22 In 1993 Witold was living with his wife, Wanda, at the Booragoon house. He was working as an information technology consultant. The business was a computer service and repair business. Witold registered the business name 'Mazur Computers' on 25 January 1995. Witold used the name Victor Mazur, which is an anglicised version of his name. The business address was the Booragoon house.

23 Witold's brother, Waldemar, and his wife, also named Wanda, migrated to Australia in 1980. They lived in Perth and after Witold and Wanda moved back to Perth in 1990 Waldemar and his wife saw Witold and his wife about two or three times a year until they moved to Queensland in 2005.

24 Witold suffered from longstanding health problems. In the early 1990s he had an operation to remove varicose veins on his legs. Witold was a smoker and drinker. Mrs Chan found out in 2005 that he had a drinking problem. He would get very drunk and would not be able to bath or shower himself. Mrs Chan would look after him when he was in that state. Sometimes she would take a day off work to spend with him. The evidence of other witnesses establishes that Witold often drank to the point that he was adversely affected by alcohol.

25 In the last years of his life Witold suffered from poor health. He was sometimes not mobile because of trouble with his legs. Witold had an infection in his leg which required an operation in about July 2010. He went to hospital again in August 2010. Mrs Chan said in evidence that she and Witold were regularly sexually intimate until about two years before he died but during the last two years of his life he was unable to be intimate. Mrs Chan said that in about 2010 Witold normally did not sleep. He spent a lot of his time in his computer chair operating his computer. He also had a sleeping chair. He slept in a chair rather than on a bed because he had difficulty breathing lying down. It appears from the witnesses' description of his health problems and appointment cards from the WA Vascular Centre that he suffered from heart and vascular diseases. The cause of Witold's death was dilated cardiomyopathy.

26 Mrs Chan was born on 24 December 1943. She married in 1967 and divorced in 1996. She has two children, born in 1968 and 1969. One of her sons, Victor Chan, moved into Mrs Chan's Ferndale house about two weeks before she left for China on 11 November 2010 and has continued to live there since. In 1993 Mrs Chan owned a property with her husband in Floreat. Her husband lived and worked in Hong Kong. Mrs Chan was not working and was responsible for home duties.

27 Mrs Chan met Witold in early 1993. They started talking on the phone and going out for dinner. The relationship became serious later in 1993. They started a sexual relationship which continued until about two years before Witold died. Witold visited Mrs Chan at her house and on occasions when her son was not home Witold would stay the night.

28 Around Easter 1993 Mrs Chan told her husband about Witold and that she wanted a divorce. Mrs Chan informed Witold. Witold told Mrs Chan that he had told his wife about their relationship and that he was going to leave the Booragoon house and come to live with Mrs Chan. Witold and Mrs Chan found rental accommodation in Herdsman Parade and moved in together. For the first few months Mrs Chan had no job or money. Witold was working and paid for their living expenses. After about two months Mrs Chan found a job as a courier and then started paying the rent. She would sometimes buy food when she had the money. Mrs Chan and Witold lived together in Herdsman Parade for about two years. During that time they bought some furniture together, specifically a bed and a refrigerator.

29 As part of the property settlement with her husband, Mrs Chan received the former matrimonial house at Floreat. That was in or about 1995. Mrs Chan and Witold then moved from the rental accommodation into the Floreat house. They lived there until 2001. Witold and Mrs Chan each bought some things for the house.

30 Witold had been working full time until he became ill with heart problems and had a blood clot. He ceased working full time. Mrs Chan says she would give him $50 when he asked.

31 In 2001 Witold told Mrs Chan that he wanted to sell the Floreat house because it was the house she had lived in with her husband. Witold said he wanted to buy a house in Ferndale. Mrs Chan sold the Floreat house and purchased the house at Ferndale in 2001. Witold and Mrs Chan moved into the Ferndale house. The account for the landline telephone at the Ferndale house was in Witold's anglicised name of Vic Mazur between at least October 2002 and January 2004. Mrs Chan said that after that time Witold did not want to pay the bill so the account was changed to her name. There are newsagent accounts addressed to Vic Mazur at the Ferndale house in August 2007 and July 2008. Mrs Chan says that after she retired in July 2008 she and Witold lived off her savings and their Centrelink payments. Witold was also receiving some share dividends.

32 When they lived together, Witold and Mrs Chan shared the same bed. She did most of the chores and he would sometimes help. They prepared and ate meals together. They attended functions together, particularly her work functions, and spent a lot of time together and caring for each other. From the start of their relationship Mrs Chan and Witold would go out for dinner regularly and every year he would go to her work Christmas party. Witold socialised with Mrs Chan and her friends, especially at Christmas and Easter. Mrs Chan says this continued until he died but that is not accurate. Aung Zan is a friend of Mrs Chan who worked with her at Vista Visual Australia in Bayswater and Welshpool. He recalls Witold attending Vista Visual firm outings with Mrs Chan and at a Christmas party at Burswood on another of the Vista Visual outgoings. He did not see Witold after 2008 or 2009.

33 To celebrate birthdays they would usually go out for dinner and Mrs Chan would buy presents for him at his birthday and at Christmas. He would buy her presents or dinner. Every Christmas Mrs Chan would buy Witold champagne and cook him a special meal. Every New Year they would stay up to celebrate the beginning of the New Year.

34 In January 2008 Witold told Mrs Chan that his wife had fallen ill with cancer and he needed to go and look after her. Mrs Chan says that from that time Witold would go to the Booragoon house daily and look after Wanda. Sometimes he would stay overnight but usually he would go back to the Ferndale house. Witold left a chainsaw, some exercise weights and a tool for woodcutting at the Ferndale house. He had clothes at the Booragoon house. He left some clothing in a cabinet in the room he used at the Ferndale house. Mrs Chan did not know how much clothing he took away and how much remained at the Ferndale house.

35 Wanda died in July 2008. After Wanda died Witold mostly stayed at the Booragoon property. Mrs Chan said that in about September 2008 Witold went back to live at the Ferndale house with her. However, as I have said, I find that after Wanda died in July 2008 Witold lived at the Booragoon house, although he visited Mrs Chan at the Ferndale house and stayed overnight occasionally. Witold may have moved back to the Ferndale house in late 2008 but if he did it could only have been for a short period. I accept Mrs Chan's evidence that after 2008 Witold regarded the Booragoon house as his home.

36 After Wanda died Witold's cousin, Jerzy, visited Witold from time to time. On one occasion in about 2009 Witold asked Jerzy's wife, Marianna, to go and buy some food and household items for him because his legs were troubling him and he was not then mobile. On another occasion, in about July 2009, Witold told Jerzy that he had been in St John of God Hospital in Subiaco. Witold gave Jerzy a key to the house. On a later occasion Witold telephoned Jerzy, said that he was hungry and asked Jerzy to come to visit him as soon as possible and bring him something to eat. Jerzy took Witold some food and stayed with him. Witold became distressed and retired to his bedroom. Jerzy was concerned for Witold's condition and telephoned for an ambulance. The ambulance attendants advised Witold to go to hospital but he refused to do so. Jerzy stayed overnight at the Booragoon house. Mrs Chan does not know about the incident when the ambulance came to the Booragoon house. Witold asked Jerzy to assist him from time to time to renovate aspects of the house. Jerzy did not see any evidence of any person living in the house other than Witold.

37 After the incident when Jerzy called the ambulance, Jerzy's wife, Marianna, regularly prepared meals for Witold and visited Witold with Jerzy. No woman ever visited Witold on any of the occasions Marianna was at the house.

38 In about July 2009 Witold invited Waldemar to visit him in Perth. Waldemar arrived in about July 2009 and stayed with Witold for about two weeks. Mrs Chan did not come to the Booragoon house whilst Waldemar was there. Waldemar did not see or hear from Mrs Chan and did not notice any traces of any other person living there.

39 Mrs Chan said that she and Witold went out less after Witold fell ill. Mrs Chan says that in the last couple of years of Witold's life he did not go out much and nearly all social activity stopped because he was ill and tired. I find that after mid to late 2008 Witold and Mrs Chan ceased going out together or socialising with other people.

40 On one occasion Mrs Chan asked Ms Wong to take her to Witold's Booragoon house because she was worried about him. Ms Wong thinks that was some time in 2010. Witold was sick. Ms Wong took Mrs Chan to the Booragoon house and stayed for about 20 minutes before leaving. Mrs Chan remained at the house. Waldemar says that when Mrs Chan spoke to him after Witold had passed away she said that she had stayed with Witold in the Booragoon property one night when he was feeling very ill. I am not satisfied that Mrs Chan stayed overnight with Witold at the Booragoon house or visited him there more than occasionally in 2009 and 2010. Mrs Chan admitted that she seldom stayed there after 2008.

41 In June 2010 Witold had a badly infected leg. He was admitted to Fremantle Hospital and transferred to Royal Perth Hospital where he stayed for almost two weeks. Mrs Chan says she visited him regularly whilst Witold was in hospital. She took his dirty clothes home and washed them. Upon Witold's discharge from Royal Perth Hospital Mrs Chan took him back to the Booragoon property. She says she stayed with him there.

42 Witold was admitted to hospital again in August 2010 with stomach problems. He was in hospital for about 10 days. Mrs Chan says that when he was discharged she took him back to the Booragoon property and stayed with him there and occasionally went back to the Ferndale property to tend to the garden. Mrs Chan said that after Witold's admission to hospital in July 2010 and again in August 2010 he spent every night at the Booragoon house. He only came to Mrs Chan's Ferndale house in the day time. Mrs Chan says she stayed mainly at her house in Ferndale. Sometimes Witold called her and she spent the night at the Booragoon house.

43 On an occasion in 2009 Jerzy met a woman with the same surname, Mazurkiewicz, at Witold's Booragoon house. I will refer to the woman as Ms Mazurkiewicz. Jerzy recognised Ms Mazurkiewicz from church. Witold subsequently told Jerzy that he had asked this lady to come and live with him on a full time basis but he had rejected her because she demanded too much from him in consideration for his offer.

44 In about April 2010 Witold started an intense and prolonged relationship with Elzbieta who was living in Canada, a relationship they conducted principally by Skype until Elzbieta came to live with Witold at Booragoon in September 2010. I will refer to Witold's relationship with Elzbieta later in these reasons. I observe at this time that Witold's approach to Ms Mazurkiewicz and his seeking and maintaining a personal relationship with Elzbieta, together with the evidence of Jerzy and Waldemar that they did not see Mrs Chan at any time at the Booragoon house and Witold did not refer to her, indicates that by 2009 Witold's commitment to a shared life with Mrs Chan had diminished and in many respects he lived a life separate from Mrs Chan and was seeking a personal relationship with another woman.

45 In August 2010 Mrs Chan received news from her family in China that her sister was ill. She told Witold that she wanted to go back to China to visit her relatives. Mrs Chan says she spoke to Witold about arranging for someone to stay with him whilst she was away. He said he would look for someone. Mrs Chan says that in September Witold told her that he had found someone to stay and look after him who was arriving on 20 September 2010.

46 I do not accept that Witold arranged for Elzbieta to come to Perth to care for him whilst Mrs Chan was in China. In her affidavit Elzbieta says, and I accept, that her Skype communications with Witold were both audio, visual and in writing. Mrs Chan said in evidence that she saw Witold using the computer and when she asked him why he spent all the time on the computer he said he was talking with some member. She understood that members were some group of people talking together. Witold and Elzbieta's written Skype communications were in Polish. They have been translated into English. There is unchallenged evidence that between April 2010 and 16 September 2010 Witold spent 615 hours communicating with Elzbieta by Spyke. The transcript of those communications disclose that Witold and Elzbieta communicated daily during that period. Their communications were personal and intimate. They spoke of love for each other and spending time together in the future. On 19 August 2010 Elzbieta wrote to Witold 'I love you wholeheartedly, and will be with you soon. Never again, you will not be alone. 20th of September is getting closer'. Elzbieta arrived in Perth on 22 September 2010. That was almost two months before Mrs Chan left for China.

47 After Elzbieta arrived, Witold spoke to Mrs Chan. She says he came to the Ferndale property. Mrs Chan says Witold said he did not want Mrs Chan to meet the carer because she did not speak English very well and he would be embarrassed to introduce Mrs Chan to her. Mrs Chan says that Witold told her he loved her and would miss her. Mrs Chan says she told Witold that she would be back before her birthday on 24 December and they could go out for her birthday to celebrate. I do not accept that Witold did not want Mrs Chan to meet Elzbieta because she did not speak English very well and he would be embarrassed to introduce Mrs Chan to her. I do not accept that Witold said that to Mrs Chan. In her affidavit sworn 22 November 2011 Mrs Chan said:

Witold did not want me to meet the carer because he said she did not speak English very well and he would therefore, be embarrassed to introduce her to me. He said he was okay, not to worry and come back as soon as I could. He told me he loved me and would miss me. (emphasis added).

However, in crossexamination Mrs Chan said that the reason Witold would be embarrassed to introduce her to the carer was not because her English was not very good. She said that Witold had said the woman's English was not very good and had said he would be embarrassed to introduce Mrs Chan to the woman but not because her English was not very good.

48 Mrs Chan said that when Witold came to visit her and told her that he loved her and would miss her he said he would call her. Mrs Chan said that he did not call her and so she called him. Mrs Chan said that he shouted at her and told her not to call him. Mrs Chan said it was because Witold had been angry and shouted at her and told her not to call him that when she returned from China she did not attempt to contact him until her birthday, 18 days after she returned to Perth. I find that Witold told Mrs Chan that he did not want her to contact him and she understood that. I find Mrs Chan's evidence of what Witold said to her when he came around to her house at Ferndale concerning Elzbieta and Witold's intentions about future contact and his relationship with Mrs Chan are unreliable. I do not accept that Witold said the things Mrs Chan says he said.

49 Elzbieta met Witold on what she describes as the Lonely Polish Heart Website in March 2010. They spent a substantial amount of time communicating through the website. In her affidavit Elzbieta says that she also communicated through email and later over the telephone. That is partly supported by Witold's telephone account which shows telephone calls to Canada. Elzbieta communicated by Skype, both audio, visual and in writing. They communicated in Polish. Elzbieta says that the contacts were very intensive and sometimes occupied several hours a day from about April 2010 until she left Canada for overseas in September 2010. That is consistent with the Skype records produced in evidence. During their contacts Witold said that he could not go to Canada because he had heart problems and could not fly. That is consistent with Witold's health problems.

50 Elzbieta says that Witold asked her to come to Australia so that they could get to know each other better. That is consistent with the transcripts of their Skype communications. Elzbieta says that she told Witold that she was going to her son's wedding in Warsaw, Poland, in September 2010 and that she would then visit him in Perth via London. Elzbieta says that they agreed to that and Witold purchased her ticket in about July 2010. The documents printed from Witold's computer include a booking confirmation for Elzbieta which is ZUJI Order ID101947012. The documents tendered by consent include a ZUJI confirmation for trip ID101947012 which is for travel for Elzbieta departing Warsaw on 21 September 2010 and arriving Perth on 22 September 2010. I find that Witold purchased the ticket for Elzbieta to fly to Perth in September 2010.

51 Elzbieta arrived in Perth on 22 September 2010. Her visa was to expire on 21 December 2010. Elzbieta says that Witold fetched her from the airport and took her back to his home at Booragoon. Elzbieta says that initially she slept in a separate bedroom from Witold but they began an intimate relationship and shared the main bedroom. Elzbieta says that during the time that they shared a bed Witold sometimes slept in the bed but occasionally was unable to sleep and got up and went into his office to work on the computer. I am satisfied from all of the evidence that the relationship between Elzbieta and Witold was a personal and intimate relationship and not that of a carer and person cared for.

52 At about 8.30 pm on 11 December 2010 Witold went to the bedroom to rest. Later that night Elzbieta found Witold unconscious. She called the emergency number as a result of which the police arrived and then an ambulance. Witold was pronounced dead. At the request of the police Elzbieta telephoned Witold's cousin Jerzy and told him what had happened. They came around to the house. Jerzy telephoned Waldemar and told him of Witold's death. Waldemar came to Perth and remained in Perth until 24 December 2010 when he returned to Queensland. Elzbieta stayed in the house for a few days and then returned to Canada.

53 Mrs Chan had left for China on 11 November 2010. She had no contact with Witold after she left. She did not attempt to contact him. Mrs Chan's son, Victor, had moved into her Ferndale house about two weeks before she left for China. Victor Chan said in evidence that whilst Mrs Chan was away in China Witold telephoned the Ferndale house and asked when his mother was coming back and asked if someone had come to fix the ceiling. That communication indicates that Witold did not sever all contact with Mrs Chan. However, it is not evidence of a continuation of a de facto relationship or an intention to resume one.

54 Mrs Chan says that on her return from China she tried to contact Witold as arranged on her birthday, 24 December, but was only able to leave a message on the answering machine. Mrs Chan went to the Booragoon property but no one was there and Witold's car was gone. She tried to call his mobile but could not get hold of him. Mrs Chan took food to the house and left it by the door. Witold still did not contact her so she checked with the hospital to see if he had been admitted. They had no record of him. Mrs Chan says that a few days later she telephoned the house and Witold's brother, Waldemar, answered the phone. He told Mrs Chan that Witold had died on 11 December 2010.

55 Waldemar returned to Perth and lived at the Booragoon house from March 2011 until November 2011 whilst he was renovating the property. Waldemar did not see Mrs Chan come to the house before about April 2011. In April 2011 Mrs Chan telephoned the Booragoon house. Waldemar answered and told her that Witold had passed away. Mrs Chan asked if she could come over to the house. She went straight over to the house. There is a conflict between Waldemar and Mrs Chan about what took place in that telephone conversation, in the conversation between Waldemar and Mrs Chan when she came to the house and in another conversation between them when she came to the house about a week or two later. I find it unnecessary to resolve that conflict. I find that on at least one of those occasions Mrs Chan told Waldemar that Witold owed her $19,000, or two lots of $9,500.

56 Harry Wallis is the husband of Mrs Chan's friend Leong Pow Kam. He met Witold on a number of occasions before he and his wife moved to New Zealand in April or May 2000. Mr Wallis and his wife have lived in Melbourne since 2001. Between March and December 2008 Mr Wallis was in Perth attending to his father's personal effects. Mrs Chan says that in late August or early September 2008 Witold asked Mrs Chan to call Mr Wallis, because he wanted to make a will. Mrs Chan called Mr Wallis. Mr Wallis came to the Booragoon house. Witold asked Mr Wallis to write a will. Witold told Mr Wallis that he wanted to leave everything to Mrs Chan. Mr Wallis recalls Witold saying that he always wanted to marry Mrs Chan. Mr Wallis wrote Witold's instructions on a form that he had obtained from the post office. Witold signed the will and Mr Wallis and Mrs Chan's friend, Vivi Cheng, witnessed it.

57 Witold's statements to Mr Wallis and his execution of the Will shows that in late August or early September 2008 Witold was close to Mrs Chan and wanted to marry her. However, I am not satisfied, despite some evidence of Mrs Chan to the contrary, that Witold maintained that sentiment in 2009 and 2010. I make that finding based on the evidence of Jerzy and Mariana and Witold's search for someone to live with that led to his meeting Ms Mazurkiewicz and Witold looking for someone to form a relationship with on the internet and doing so.

58 After Witold's death Waldemar and Jerzy searched for a will but no will was found. Waldemar applied for letters of administration. In his affidavit in support of his application Waldemar swore that Witold left assets in Western Australia having a net value, after payment of funeral expenses, of $497,438. Witold also left a property in Poland valued at $127,000 and shares or investments to the value of $277,688. Letters of administration were granted to Waldemar on 12 May 2011.

59 On 22 November 2011 Mrs Chan commenced these proceedings seeking a declaration that she was Witold's de facto partner at the time of his death and is entitled, in accordance with s 14 of the Administration Act to the intestate property to which a wife of Witold would have been entitled, had he died leaving a wife.

60 I find that Mrs Chan and Witold lived together in a marriagelike relationship from the time they started to live together in Herdsman Parade until Witold moved back to the Booragoon house to look after Wanda in early 2008. During that time they resided together first at the rented accommodation in Herdsman Parade, then in the house belonging to Mrs Chan in Floreat and subsequently in the house belonging to Mrs Chan in Ferndale. There was a sexual relationship between them. There was a degree of financial dependence between them. Witold lived in Mrs Chan's house in Floreat and the house belonging to her in Ferndale. There was a degree of common ownership, use and acquisition of property. When they first moved in together in Herdsman Parade they bought some furniture together, specifically a bed and a refrigerator. There was a mutual commitment by them to a shared life. This is reflected first in each of them separating from their spouses and looking for and moving into shared accommodation. They then moved together from that accommodation to Mrs Chan's house in Floreat. Their commitment to a shared life is also reflected in Witold's request to Mrs Chan that they cease living in the Floreat house because it had been the house in which Mrs Chan had lived with her exhusband and Witold's request to buy a house in Ferndale, albeit the house was purchased and owned by Mrs Chan. Their shared life was also reflected in Witold and Mrs Chan going out together, attending Mrs Chan's work functions and celebrating birthdays, Christmas and New Year together.

61 Mrs Chan's neighbour, Evelyn Carter, knew Witold as Mrs Chan's partner. Aung Zan worked with Mrs Chan until about 2008. Mr Zan helped Mrs Chan and Witold move the house contents from the house in Floreat to the house in Ferndale. Witold told Mr Zan that he was staying with Mrs Chan. Mr Zan saw Witold at Mrs Chan's firm outings on at least two occasions and attended a picnic with Mrs Chan and Witold at Water Ski Park. He also met Witold at a Christmas party at Burswood on another of the firm outings. In about 1995 when Mrs Chan and Witold lived at the Floreat house Witold told Ms Wong that he and Ms Chan were together. Witold's wife, Wanda, told her niece, Agnieszka Huston, in January 2007 that Witold was in a relationship with Mrs Chan and they were living together. Shortly after Wanda had died, Mrs Chan spent the night at the Booragoon house. In Ms Huston's presence Witold behaved in a very familiar manner with Mrs Chan.

62 A marriagelike relationship between Mrs Chan and Witold had endured for at least 15 years. However, the question to be answered is whether Mrs Chan and Witold were living in a marriagelike relationship at the time of his death and for at least two years immediately prior to that, that is between December 2008 and 11 December 2010.

De facto relationship does not continue until one party communicates it is ended

63 I have found that a de facto relationship was established and maintained between 1993 and 2008. The plaintiff says the de facto relationship continued to the time of Witold's death because it did not come to an end. The plaintiff says a de facto relationship comes to an end only when one party forms the intention to end the relationship, that party acts on the intention and the intention to end the relationship is communicated to the other party. The plaintiff says that Witold did not communicate to Mrs Chan that the relationship had ended and did not carry out such an intention.

64 I do not accept that a de facto relationship once established must be found to continue unless and until it is established that one party forms the intention to end the relationship, acts on the intention and communicates that intention to the other party.

65 In H v P Murphy JA, with whom Pullin and Buss JJA agreed, at [67] said that the effect of the appellant's submissions was that once a de facto relationship is found to exist, it will continue to exist, notwithstanding that many of the aspects that contributed to the formation of the relationship may have disappeared. His Honour rejected the proposition that once established, a de facto relationship is presumed to continue unless and until it is established that there has been a severance of the relationship. Murphy JA said:

Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than [the other party] being required to prove the negatives.

Murphy JA cited S v B [2004] QCA 449; [2005] 1 QdR 537 [48] [50] in support of that proposition.

66 In those paragraphs of the judgment in S v B referred to by Murphy JA, Dutney J, with whom McPherson and Williams JJA relevantly agreed, referred to a passage in the judgment of Mahoney JA in Hibberson v George (1989) 12 FAM LR 725, 739 740 where Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows:

There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it is was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to 'live together' with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.

Dutney JA then said, in the passage referred to by Murphy JA in H v P:

Applying the passage of Mahoney JA in Hibberson v George, which I set out earlier, a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision. I do not think it is necessary that the other party agree with or accept the decision. Once the parties cease to jointly wish to reside together in a genuine domestic relationship, a situation usually ascertained by looking objectively at the whole circumstances of the relationship, the de facto relationship ceases. The relationship ceases even though one party is still anxious to try to save it.

In order to bring this claim within the provisions of pt 19 of the PLA the respondent, who was the plaintiff at trial, needed to prove the existence of the relationship as at 21 December 1999 when the part commenced. Perhaps because of the appellant's denial at trial that a de facto relationship had ever existed, the evidence focussed on the creation of the de facto relationship. In any event, apart from events which suggest any such relationship had ceased there is a paucity of evidence as to the nature of the relationship as at 21 December 1999. In this regard there is a difference between a marriage and a de facto relationship. In a marriage, the parties remain married and are presumed to be living as a 'couple' unless the party wishing to end the relationship proves a separation for the statutory period. In a de facto situation it is the pasty asserting the relationship that must prove cohabitation of the required quality. In Pavey v Pavey, on which the respondent relied, the Full Court of the Family Court in dealing with what constitutes 'separation' between two parties to a marriage who continue to reside in the same residence said at 75,213 75,214:

'In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefor require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the Court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.

The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives [48] - [50].

67 The statutory requirement is that Mrs Chan and Witold lived as de facto partners for a period of at least two years immediately before his death. It is therefore necessary to consider the factors or indicators of whether or not a de facto relationship existed between them at Witold's death on 11 December 2010 and the two years immediately preceding his death.

68 The relationship between Witold and Mrs Chan was a long term relationship. It lasted for 17 years, although the nature of the relationship changed after Witold returned to live at Booragoon in 2008.

69 Mrs Chan and Witold resided together from 1993 until early 2008. However, they were not residing together at the time of Witold's death and had not resided together in the two years immediately preceding his death.

70 This includes things like how often the two people stay in the same residence and share household chores and duties. Before Witold moved back to the Booragoon house in 2008 they stayed in the same residence all the time. They shared some household chores and duties. For example, they did some shopping and cooking together. However, at the time of Witold's death, and for the two years immediately preceding his death, they did not share a common residence.

Whether there is, or has been, a sexual relationship between them

71 There was not a sexual relationship between Mrs Chan and Witold at the time of his death and there had not been such a relationship for a period of at least two years before his death. Mrs Chan says that their sexual relationship ceased because Witold was unable to maintain the relationship because of his health problems.

The degree of financial dependency, or interdependence, and any arrangements for financial support, between them

72 At the time of Witold's death, Witold and Mrs Chan were financially independent. Neither contributed to the daily expenses or outgoings of the other. Neither of them had made any commitment to financially support the other and neither of them relied upon the other for financial support. Witold and Mrs Chan maintained separate bank accounts.

73 Mrs Chan had loaned some money to Witold in April 2009 when she deposited two lots of $9,500 into a bank account in Witold's name. At most, that gives rise to a debt.

The ownership, use and acquisition of their property (including property they owned individually)

74 Mrs Chan and Witold did not own any property together. They bought some furniture and white goods together at times but there is no evidence of what became of those items, and whether they still existed at the time of Witold's death. During the time they cohabited Mrs Chan and Witold used property in common. In particular, Witold lived in houses owned by Mrs Chan at Floreat and Ferndale. However, at the date of Witold's death and for the two years immediately prior to that time they did not acquire or own any property in common. There was no substantial use by one of them of the property of the other.

The degree of mutual commitment by them to a shared life

75 For many years, Witold and Mrs Chan showed a high degree of mutual commitment to a shared life. However, the nature of their relationship changed in 2008 when Witold moved back to the Booragoon house to care for Wanda. Thereafter their mutual commitment to a shared life together diminished and in many respects they lived separate lives.

76 Witold and Mrs Chan maintained a friendship in 2009 and 2010. Witold visited Mrs Chan at Ferndale and occasionally stayed with her overnight and Mrs Chan visited Witold at Booragoon and occasionally stayed with him. Witold found and gave to Mrs Chan the address of somebody to repair the roof of her Ferndale house. Mrs Chan supported Witold by occasionally visiting him and in particular in July and August 2010 taking him to hospital, visiting him there, and taking him back to his home at Booragoon when he was discharged from hospital. However, there was no commitment to a shared life between them. They maintained and lived at separate houses. They did not go out together. In 2009 Witold looked for a woman to live with him and met Ms Mazurkiewicz and discussed with her the possibility of her coming to live with him. In March or April 2010 Witold looked for a companion on the internet and started the relationship with Elzbieta which continued until his death. Section 13A(3)(b) of the Interpretation Act recognises that a person may maintain a de facto relationship even though they are in another de facto relationship. However, Witold's conduct in relation to Ms Mazurkiewicz and Elzbieta are indicators that he did not have a commitment to a shared life with Mrs Chan.

77 From the time Elzbieta arrived in Perth on 22 September 2010 Witold and Mrs Chan did not see each other, apart from one or possibly two relatively short visits by Witold to Mrs Chan at Ferndale and at least one telephone conversation. Witold told Mrs Chan not to visit or telephone him. About six weeks later, Mrs Chan departed for China. Mrs Chan was in China for almost four weeks. During that time neither Mrs Chan nor Witold attempted to contact the other. Mrs Chan returned to Perth on 6 December 2011. She did not attempt to contact Witold until 24 December 2011 by which time it was about two months since she had seen him. At the time of Witold's death, Witold and Mrs Chan had not seen each other for several weeks. They had not attempted to contact each other during that period. It is hard to reconcile that with a mutual commitment to a shared life. At the time of Witold's death Witold and Mrs Chan did not have any mutual commitment to a shared life.

78 Witold and Mrs Chan did not care for or support children.

The reputation, the public aspects, of the relationship between them

79 From 1993 to 2008 Witold and Mrs Chan were known to others as a couple and behaved in public as a couple. However, that changed in 2009 and 2010 when Witold was living at Booragoon. Leaving aside Mrs Chan, the person or persons with whom Witold had most contact after Wanda's death were his cousin, Jerzy, and Jerzy's wife, Mariana. Jerzy and Mariana visited Witold regularly in 2009 and 2010. They regularly brought him food. Witold gave Jerzy a key to his house in case it was necessary for somebody other than Witold to have access to the house. Witold made no mention of Mrs Chan to Jerzy or Mariana at any time.

80 In determining whether there was a marriagelike relationship between Witold and Mrs Chan at the time of his death and for the last two years immediately preceding his death, what is required is an overall assessment of the facts and of all the relevant elements of the relationship. I find there was no de facto relationship at that time. I do so after considering all of the factors or indicators referred to in s 13A(2) of the Interpretation Act and the other matters I have referred to in the course of this judgment.

81 The matters which carry most weight are these. Witold and Mrs Chan did not reside together. Each of them maintained their own home. Each of them was financially independent. Neither relied upon the other for financial support or provided financial support to the other. They maintained a friendship and general support but they had no mutual commitment to a shared life together. Witold's discussion with Ms Mazurkiewicz about coming to live with him and his relationship with Elzbieta are indicators of that. There was little communication of any sort between Witold and Mrs Chan after Elzbieta arrived in Perth on 22 September 2010. Witold told Mrs Chan not to contact him. Witold and Mrs Chan did not communicate, or attempt to communicate, with each other for at least several weeks before Witold died.

82 Having regard to those matters taken together I find that Mrs Chan has failed to establish that she and Witold lived as de facto partners at the time of his death and for a period of at least two years immediately before his death. The plaintiff's claim must be dismissed.

CITATION : CHAN -v- WALDEMAR MAZURKIEWICZ (in his capacity as Administrator of the Estate of WITOLD MAZURKIEWICZ) [2015] WASC 432 (S)

MATTER : Section 45 of the Administration Act 1903 (WA)

The Estate of Witold Mazurkiewicz, retired late of 38 Siddons Way, Booragoon in the State of Western Australia (Dec)

WALDEMAR MAZURKIEWICZ (in his capacity as Administrator of the Estate of WITOLD MAZURKIEWICZ)

WALDEMAR MAZURKIEWICZ (in his capacity as Beneficiary of the Estate of WITOLD MAZURKIEWICZ)

Costs order - Family provision claims - Inducing conduct - Turns on own facts

Administration Act 1903 (WA), s 15

Supreme Court Act 1935 (WA), s 37

1 LE MIERE J: Witold Mazurkiewicz died on 11 December 2010 leaving no children or relatives other than his brother, Waldemar Mazurkiewicz. Waldemar is the administrator of the estate of Witold. The plaintiff, Mrs Chan, claims that she and Witold lived as de facto partners at the time of his death and for a period of at least two years immediately before his death and hence pursuant to s 15(1) of the Administration Act 1903 (WA) she was entitled to the intestate property to which a wife would have been entitled had Witold died leaving a wife. I found that Mrs Chan had failed to establish that she and Witold lived as de facto partners at the time of his death and for a period of at least two years immediately before his death and dismissed her claim: Chan v Waldemar Mazurkiewicz (as Administrator of the Estate) [2015] WASC 432.

2 Waldemar is the first defendant in his capacity as administrator of the estate and the second defendant in his capacity as beneficiary of the estate. Waldemar seeks an order that the plaintiff pay the defendants' costs of the action. Mrs Chan seeks an order that the costs of the parties be paid from the estate or in the alternative there be no order as to costs.

3 The power to make a costs order comes from s 37(1) of the Supreme Court Act 1935 (WA) which provides relevantly that subject to the provisions of the Act and to the rules of court the costs of and incidental to all proceedings in the court shall be in the discretion of the court or judge and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid. Order 66 rule 1(1) of the Rules of the Supreme Court 1971 (WA) provides that subject to the express provisions of any statute and of the rules the costs of and incidental to all proceedings shall be in the discretion of the court but, without limiting the general discretion conferred on the court by the Act, and subject to O 66, the court will generally order that the successful party to any action or matter recover his costs. The discretion is very wide. The only fetters are those provided elsewhere in the Act and the Rules, or any other Act, and the fact that the discretion must be exercised judicially: Naidoo v Williamson [2008] WASCA 179 [39] (Steytler P).

4 In her written submissions the plaintiff referred to her impecuniosity or lack of financial resources. Courts are disinclined to consider the financial position of a party as a relevant matter in the exercise of the costs discretion: Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193, 208 [36] (Chernov JA, Nettle and Neaves JJA agreeing).

5 The plaintiff referred to dicta that the usual rule as to costs is often departed from in family provision cases. In years past the costs of family provision proceedings were often ordered to be paid out of the estate, even in the case of unsuccessful plaintiffs. However, in Dean v Collins [No 2] [2015] WASCA 151 [34] the Court of Appeal stated that it is the general policy of the court to order costs against unsuccessful claimants or beneficiaries in family provision claims.

6 A court may refuse costs to a successful defendant who has, by inducing the plaintiff to believe that she had a good cause of action, or by some other act or omission, led the plaintiff to bring the action, where aside from the defendant's inducing conduct, the action would in all likelihood not have been brought. For example, in Mitropoulos v Greek Orthodox Church and Community of Marrickville & District Ltd (1993) 10 ACSR 134, 139 McLelland J held that the conduct of the defendant was such as to encourage the plaintiffs to believe that they had a valid claim to relief in the proceedings and that for that reason there should be no order against the plaintiffs in respect of the defendant's costs.

7 I turn to the relevant circumstances of this case. The case involved questions of judgment applied to broad concepts such as the degree of mutual commitment to a shared life. It is not a case of which it can be properly said that it ought not to have been brought.

8 Mrs Chan and Witold lived together in a marriagelike relationship for 15 years from 1993 until Witold moved back to the Booragoon house to look after his estranged wife in 2008. Witold and Mrs Chan maintained a friendship in 2009 and 2010. Witold visited Mrs Chan at her Ferndale house and occasionally stayed with her overnight and Mrs Chan visited Witold at his Booragoon house and occasionally stayed with him. Witold found and gave to Mrs Chan the address of somebody to repair the roof of her Ferndale house. Mrs Chan supported Witold by occasionally visiting him and in particular in July and August 2010 taking him to hospital, visiting him there, and taking him back to his home at Booragoon when he was discharged from hospital.

9 In 2010 Witold looked for a companion on the internet and started a relationship with Elzbieta. From the time Elzbieta arrived in Perth in September 2010 Witold and Mrs Chan did not see each other apart from relatively short visits by Witold to Mrs Chan at Ferndale. Witold was not open with Mrs Chan about his relationship with Elzbieta or his relationship with Mrs Chan. Witold did not tell Mrs Chan that he intended to end the relationship between them. I accept that Mrs Chan believed that she and Witold maintained a special relationship. If it was not for Witold's conduct inducing Mrs Chan's erroneous appreciation of the relationship between them, Mrs Chan would not have brought this proceeding.

10 Those matters lead me to the conclusion that Mrs Chan ought not be required to bear the costs of Witold's estate or the costs of the beneficiary of the estate, Waldemar. Nevertheless, Mrs Chan made a decision to bring this proceeding and to incur the costs of doing so. That decision has cost the estate. In the circumstances Mrs Chan should not further burden the estate with the costs of her own erroneous decision. In my opinion, therefore, the just result in this case is to order that each party bear their own costs. I would have ordered that the defendants' costs be paid out of the estate but for the fact that Waldemar has distributed the estate to himself and so no purpose would be served by such an order.