DRIDI v FILLMORE

Introduction 1 MASTER: This is an application brought by the plaintiff by his amended Statement of Claim in which he seeks relief under the Property (Relationships) Act 1984 as a result of a domestic arrangement that he says existed between himself and the defendant from 1994 until November 1999. The amended Statement of Claim also seeks certain declarations as to trusts in respect of property, which was the subject of occupation by the parties during the relevant period. An order has been made by a Judge that the whole of the proceedings be referred to a Master for determination. The relief sought is based upon the alleged existence of a domestic relationship in the narrow sense of a de facto relationship as defined in the Property (Relationships) Act 1984 and also in the wider sense of a close personal relationship referred to in that Act. The plaintiff also seeks to rely upon an agreement said to have been entered into on 15 September 1999 which he alleges is a termination agreement within the meaning of that expression in s 44 of the Act. 2 The defendant admits on the pleadings that there was a relationship between the plaintiff and himself from July 1994 to March 1996 and from June 1996 to November 1997. He however denies on the pleadings that it was a domestic relationship within the meaning of the Act. In addresses the defendant conceded that there was a de facto relationship from August 1994 until March 1996. 3 The defendant also brings a cross claim. In that cross claim the defendant seeks relief in respect of three general areas. The first is in respect of monies advanced for the purposes of the plaintiff's business amounting to $253,489.38. The second relates to the conversion of chattels of the defendant by the plaintiff such chattels having a value of some $65,020. The chattels comprised artefacts, furnishings and floor coverings in the defendant's home 36 Nobbs Street, Surry Hills. The third area of the cross claim concerns a liability incurred by the plaintiff on the defendant's American Express card, the defendant claiming back from the plaintiff a sum of $52,445.79. The total of these claims is $370,955.17. 4 The plaintiff was born on 24 May 1971 and is French by descent. After completing a small part of his tertiary education the plaintiff became involved in sales and marketing research in France. He came to Sydney in May 1994 when he was then 24 years of age. He makes it clear that he is bi-sexual. 5 The defendant was born on 17 August 1942. He was born in South Australia and has grown up in Australia. He has no children and makes it clear that he has been gay all his adult life. From about 1980 he lived in a de facto relationship with Mr John Sidney Aust for about 12 years until that person's death. As a result of Mr Aust's death the defendant received substantial benefits from his estate. These included a life interest in the property 36 Nobbs Street, Surry Hills, a life interest in a property at Bilpin, a share portfolio, investment units and two retail clothing businesses. The parties first met in June 1994 as a result of an enquiry by the defendant to an escort agency. They are agreed that they commenced a sexual relationship shortly thereafter. They commenced living together in the defendant's home in August 1994. The defendant sponsored the defendant for Australian citizenship and after completing appropriate applications in 1995 the plaintiff was granted permanent residence on 29 November 1996. 6 There were a number of businesses which were operated at the commencement of the relationship by the defendant. One was "Boutique Additonne" and the other the "Shirt Dress Shop". In 1995 the defendant registered the name "Monsieur Elegance" as a business name and his company which was carrying on one of his other businesses was the proprietor. On 1 July 1996 the arrangements changed and the plaintiff and the defendant became partners and proprietors of the business known as "Monsieur Elegance". This business continued until it was terminated in November 1997. At that time the plaintiff incorporated a company ME Shirt Specialists Pty Limited he being the sole director and shareholder. This company acquired stock from the former joint business. Shortly after this the relationship between the plaintiff and the defendant, according to the defendant, broke down. On the defendant's case there had previously been a separation in their relationship from March 1996 until June 1996. Although according to the defendant the relationship had again broken down in November 1997 the parties continued to live in the same premises until November 1999 when the defendant moved out of the premises. At that time the plaintiff's business collapsed and it was placed in liquidation in December 1999. In the middle of January 2000 the trustees of the estate of John Aust took possession of Nobbs Street, Surry Hills and ejected the plaintiff. The defendant was then entitled to possession and an interlocutory application to restore the plaintiff to possession was unsuccessful in these proceedings before Hamilton J on 4 February 2000. 7 At that hearing there was no mention of a document which has occupied a substantial amount of time at this hearing, namely, a document a copy only of which has been produced dated 15 September 1999. It is this document which the plaintiff propounds as a termination agreement in the case. In general terms the documents provides for a transfer of the defendant's life interest in Nobbs Street to the plaintiff for fifteen years, provision of some $200,000 to $250,000 from the defendant's superannuation to the plaintiff, the transfer of custody of dogs, a release by the plaintiff of a claim against the defendant for $510,000 and a release of any claim by the plaintiff against the property at Bilpin. The defendant denied the execution of such document and the plaintiff called witnesses deposing to the execution of the original of the document which original has not appeared in evidence.