Hooper v Winten [2002] NSWSC 1071 | Case summary

Costs of the defendant paid out of the estate to date amount to $147,026. I will have to return in due course to this question of costs. Facts 8 The plaintiff was born on 11 May 1953. He met the deceased in 1984 at a property the deceased then owned in Bowral. The deceased had suffered a stroke in 1980 after which he required constant care and assistance. At that time the deceased was living with a Mr Philip Shephard in a relationship which would have fallen within the description of defacto relationship under the Act as it now is. The deceased and Mr Shephard were homosexual lovers presenting themselves to the world as such. They had been together since 1970. 9 The deceased was paralysed on his left side after the stroke. He was confined to a wheelchair by day. He needed assistance getting out of bed, showering, cooking and with all personal activities and he needed help in running the gallery, as he was unable to lift pictures. He needed a carer. His relationship with Shephard cooled after the stroke, perhaps because he was no longer enjoying sexual activity and they parted in 1984. Shephard died in 1990. In 1983 the deceased employed Mr Peter Saint as carer. Mr Saint gave some help in the gallery as well. If he was away for a day then Mrs Hinchcliffe who was the sister of the deceased moved in to assist. Mr Saint left in March 1985, but he gave notice in December 1984 giving time for a replacement to be found. 10 The plaintiff moved into the Paddington house in about February or early March 1985. He was employed at that time in the Commonwealth Public Service and after a short time he applied for leave. He later returned to his employment for a time during which the deceased engaged other people, but in June 1986 the deceased and the plaintiff came to an arrangement under which the plaintiff was to be paid $300.00 per week gross and receive accommodation and board. Most of his work was of a personal carer nature, but he always did some work in the gallery giving assistance as required. Despite efforts in his affidavits to present a case that he was always employed to work in the gallery and that the personal care that he gave the deceased was unpaid, the evidence clearly showed that not to be the case and as I have said it was not submitted by Mr Wilson his counsel, at the end of the case, that the wages were not paid for work as a carer, at least in part. A document prepared by the plaintiff in 1991 stated "I am employed in a dual capacity - primarily as Mr Coventry's personal assistant (cooking, nursing, driving, accounts, etc) but also as gallery manager. Additional to what is written I am also responsible for stock and exhibition matters." This document stated the facts. 11 In his first affidavit the plaintiff said that after he resigned from the Public Service in 1986 he and the deceased "began to live together as a couple". He said in oral evidence that was because they made a commitment to each other the deceased having said "As long as you look after me I'll always look after you". He said this relationship became intimate in 1988, which he explained in oral evidence they had intercourse together for the first time in 1988. He said nevertheless and insisted that there was a sexual relationship from 1985 until 1992 after which "our sexual activity diminished and ceased all together in about 1995". 12 Mr Hooper did not sleep in the same bedroom as the deceased at Paddington although he did on occasions on visits to friends. His case was that there was an emotional loving bond between him and the deceased, that this was the reason for the care that he gave the deceased, and that their life was a shared life. He took only six days holiday over a period of fourteen years, his wage remained the same, he made some commitment to the gallery by way of a loan, he was present at all gallery parties, he was present at dinner parties hosted by the deceased and was with the deceased wherever he went. 13 From November 1996 until the death of the deceased the plaintiff was not paid his wages. This was apparently because the gallery was not making much, if any, money during this period, so the deceased was not drawing from the gallery the amount from which he paid the plaintiff's wages. Mr Winten said that he became aware of this in February 1999 when his wife told him the plaintiff had told her of this. Mrs Winten said that Mr Hooper said to her "I'm not worried about it because I know you guys will look after me; I have received some paintings in lieu of payment". She was present when her husband spoke to the deceased and said, "There is not enough money to pay him back", whereupon the deceased said "I will do a codicil to my will. Don't contact Richard d'Apice. Robert can you phone somebody for me." 14 Mr Winten arranged to see Mr Morrissey of Messrs Murphy and Moloney. He said that he calculated the unpaid wages with leave and loadings at about $60,000.00. He told the deceased, who said "We will make it up to $100,000.00". Mr Winten saw Mr Morrissey and gave him instructions for the codicil. He told Mr Morrissey the deceased wanted to give the plaintiff $100,000.00, that he was the deceased's carer. He said to Mr Morrissey "there is no sexual relationship between them and the deceased wanted to make that plain." Mr Morrissey suggested a statement to that effect be included in the codicil document. He said that he should see the deceased, but apparently suitable arrangements could not be made for this. Thus, the codicil was prepared without direct instructions and it was forwarded for execution. Mr Morrissey said he spoke to the deceased a few days later and before the codicil was executed and asked if he was happy with the gift. The final clause was not discussed. However, the deceased did confirm to Mr Morrissey that the facts in this final clause in the codicil were correct on an occasion when Mr Morrissey asked him about this when he was signing a power of attorney in favour of Mr Winten. 15 After discussions about the codicil, the deceased said to Mrs Winten "I have been advised to prepare a statement concerning my relationship with Bryan. Will you type it for me". In her affidavit of 22 February 2002, Mrs Winten said the deceased dictated a statement which she took down in her handwriting and then typed. That was not quite accurate. She said that the deceased appeared to read the document and that she read it to him. He did not sign it immediately and said that he did not want the plaintiff to see it. He signed it on 16 March 1999 on the evening of a show opening, the codicil being executed at that time. The deceased said to Mrs Winten before signing that he knew what it was. The statement which was signed is as follows: To Whom It May Concern In November 1980, I suffered a stroke which paralysed me down the left side, requiring a carer to assist with my daily activities. Initially that assistance was provided by my then partner, Mr Philip Shephard (now deceased) until the relationship ended in 1983 and Mr Shephard moved out of my home. My stroke has not unduly affected my ability to manage my affairs and I have continued to manage my art gallery, Coventry, with a full time gallery assistant, Ms Jane Watters (1985-1998). In 1984 Mr Bryan Hooper was employed as my carer. Mr Hooper has at no time been in a sexual relationship with me and our relationship is in no way a de facto relationship. Mr Hooper's role as carer was gradually modified to include a role as gallery assistant as my health stabilised. My health was reasonable until late 1998 at which time I began to employ nurses on a casual basis to assist in my care. Mr Hooper continues in the role of carer and gallery assistant to date. Supplementary to his wages, Mr Hooper received full board, and the majority of his living expenses. 16 So far as the fourth paragraph is concerned the wording on it does not follow the words used by the deceased. He said when dictating his wishes to Mrs Winten "Bryan is not my lover". Mrs Winten then wrote the words as they appear and read them back to the deceased asking if that was what he meant and he said, "Yes". It is accepted that some of the dates on the document are incorrect, but Mrs Winten said that she told this to the deceased, but he insisted that they appear as set out. 17 In May 1999 the deceased executed a power of attorney in favour of Mr Winten, who attended to his financial affairs and payments from the gallery after that. The deceased had asked that artists who had been promised exhibitions up to the end of 1999 should have them and Mr Winten arranged for that to occur. 18 The deceased never referred to the plaintiff as his partner, lover, de facto, or companion when talking to other people. The plaintiff did not refer to the deceased in those terms. There was no intermingling of financial affairs or money. There were no purchases of joint property. The plaintiff from time to time bought paintings from the gallery and regarded these as his own, which they were. There was no public display of affection between the two such as kissing each other as there had been between the deceased and Mr Shephard. The deceased gave instructions to the plaintiff and expected him to do as asked. He often said that he was going to sack the plaintiff or asked his sister to come over to sack him. The relationship, whatever it was, like any other relationship, had its good and bad times. The family arranged the funeral, referring to the plaintiff in the notice as "friend and long time carer Bryan Hooper" and the notice prepared by the plaintiff referred to his love for the deceased. Mrs Hinchcliffe, the deceased's sister, said to the plaintiff the day before the funeral when discussing the notice: BH: Bryan I would appreciate it if you would not publish this now. You know as well as I do how jealous Channy was of his art and artists and I feel that by putting "our" he would have been distraught. However, Bryan, I also feel it sounds like you and Channy were lovers. BHo: I have never presented myself, told anybody or implied we were lovers. BH: I know you are not in any sort of relationship with Channy. Also you know Channy hated this sort of thing. He thought it very ordinary. BHo: Okay, I understand what you mean. 19 As is often the case in de facto relationship claims there are witnesses on either side giving evidence of their observations. The deponents to affidavits, who were not beneficiaries, were not cross-examined. It is not established whether or not these witnesses knew that the plaintiff was being paid a wage for his work as a carer. Suzanne Archer was an exhibitor at the Coventry Gallery. She said in paragraphs 8, 9 and 10 of her affidavit: 8. Channy and Bryan continued to visit me at my studio at Wedderburn and both continued to be interested is my work. Both were involved in choosing work for my shows at Coventry Gallery. On one of these visits to my studio, Channy said to me: I hope Bryan will continue to run Coventry Gallery when I've gone. 9. When I first met Bryan and Channy, I saw them as being together, but on my subsequent meetings and because Bryan exhibited such a caring manner toward Channy and because of the above conversation, I thought that they were in a relationship. 10. I always considered after I had got to know Channy and Bryan that they were in a relationship. I never regarded Bryan as being an employee. I saw them as being together and I regarded theirs as a joint caring relationship. 20 Marea Gazzard is a sculptor who exhibited at the gallery. She gave evidence of the care which the plaintiff provided for the deceased and in paragraph 20 of her affidavit said: As a result of my association with them both and the things I observed over a period of 15 years, when they were together, in my view, they were devoted to each other and were clearly each other's life partner. 21 Mr Niemann, a next door neighbour, thought that there was a degree of personal intimacy demonstrated by the understanding the plaintiff had for the needs and wants of the deceased. He thought that their physical appearance together and their physical closeness when they were together suggested an intimate relationship. He considered they were on equal terms as a couple. A Mr Cooper thought the same. There were other witnesses to a close relationship. 22 As against this, one of the defendant's witnesses, Gillian Crocker, who attended the deceased regularly as his physiotherapist each week from 1991, regarded the plaintiff more as an employee and saw nothing to suggest any sexual relationship. Dr David Crocker, who was the deceased's general practitioner, from 1982 until his death, apart from a period of two years, and who is the husband of Gillian Crocker, said he observed nothing which caused him to conclude that the deceased was in a relationship of a sexual nature with the plaintiff. He assumed that the deceased was sexually impotent, but did not discuss this with the deceased. 23 Rosalind Raine knew the deceased from 1981. She saw him regularly. Paragraphs 11 to 16 of her affidavit are as follows: 11. Over the period in which I knew them I had the opportunity to observe the relationship between Channy and Phillip Shephard closely. All interaction between Channy and Phillip Shephard reflected, in my observation, a shared intimacy between them. They laughed together, they shared jokes and they touched each other. There was a very strong sense that they were a couple. Channy was always open about his homosexuality and overt about his relationship with Shephard. 12. In early 1985, Jennifer Winten introduced me to Bryan Hooper saying words to the effect of: "I would like you to meet Bryan, he is looking after Channy now". 13. I continued to see Bryan on my visits to the Gallery until the time of Channy's death. 14. In my professional work as an Occupational Therapist I work with patients who have carers to assist them in their daily lives. I regularly observe the relationship between disabled people and their carers. 15. When visiting Channy, I noted Bryan Hooper assisting Channy in all aspects of daily living. On no occasion did I observe any acts of intimacy between them such as touching or speaking in an affectionate manner, as I had observed with Shephard. Channy spoke to Bryan in an authoritative manner as one would speak to staff. 16. At no time during the course of my frequent visits to Channy after 1986 did I form the view that Channy and Bryan Hooper were a couple. I spoke to Bryan and Channy separately and observed them together. In my observation there was no relationship other than carer/patient between them. 24 Mrs Hinchcliffe gave some evidence of the relationship. She said it deteriorated as the deceased got older when he was asking her from time to time to come over and sack the plaintiff. She thought there was an entirely different relationship between the deceased and the plaintiff and the deceased and Mr Shephard. She said that there was never any suggestion of sharing so far as income, the gallery, the artists or friends were concerned and I accept that evidence. She said that the subject of the plaintiff making a claim did come up, not because she or her children became aware of changes to legislation, but as a result of conversations when they wondered why the plaintiff stayed in view of the difficulties that he had with the deceased. I thought she was a reliable witness and I accept her evidence. Mrs Winten gave evidence of much the same type, although she was not, I thought, such a reliable witness. Mr Fenn Hinchcliffe gave evidence of some rather strange conversations with the plaintiff about the need to "front manage" the plaintiff's situation in light of the expected death of the deceased. He was concerned, like his mother, that the plaintiff might make a claim. I accept his evidence although the plaintiff denied the "front manage" statements. 25 On 15 November 1999 the plaintiff's solicitor, Mr Gray, wrote to the defendant as executor of the estate and the relevant paragraphs from that letter are as follows: I wish to advise that I act for Bryan Stanley Hooper. I am instructed that my client has been, for about the last 15 years, the full-time carer and companion of Chandler Philip Coventry. Since the death of Mr Coventry on 14 September 1999, my client has become increasingly concerned about his future. I have been provided with a copy of a Codicil dated 16 March 1999, apparently executed by the late Mr Coventry and it is my submission that the legacy provided in that Codicil for my client is inadequate, bearing in mind the size of the estate and the relationship which existed between the late Mr Coventry and my client. Accordingly, I am instructed to seek from yourself as executor of the estate, a response as to what proposals there are, to provide for Mr Hooper's ongoing accommodation, living expenses and future needs? Therefore, I seek an early reply, to what assistance the beneficiaries of the estate are prepared to provide to Mr Hooper, above and beyond the proposed legacy? 26 It is of some significance that this letter did not claim that there was a de facto relationship, although it is proper to point out that it did refer to "the relationship". That however must be looked at together with the second paragraph where the plaintiff referred to as "full time carer and companion". Financial position of the plaintiff 27 Mr Hooper stayed at the gallery until December 1999. He then opened an art gallery business called BBA Gallery, in premises at 77 Buckland Street, Chippendale, which he leases. The gallery is conducted on the ground floor, the second level is leased to a Mr Hodges and the third level is used as a residence and partly for the gallery. Mr Niemann who previously lived next door now boards with him and pays him $200 per week. Since opening the gallery the sales have not been particularly good, but they have improved in the last few months. The plaintiff has sold most of his art collection, a great many of which works came from the Coventry Gallery. He does not expect that he will be able to continue in his present premises as he does not think the lease will be renewed when it expires in May 2003. The plaintiff has been paid the legacy of $100,000.00 given under the will and has been repaid the sum of $10,000.00, which he had lent to the deceased. The gallery in October made sales of $104,000. The plaintiff is entitled to approximately $69,000 in commissions as a result of sales, but has liabilities to creditors of the same amount. The car which the plaintiff received from the estate required major repairs which the plaintiff could not afford and it has been towed away for scrap with no benefit to the plaintiff. The $100,000.00 legacy has been expended as to $16,000.00 for dental treatment; $24,000.00 for gallery fit out and $20,000.00 for rent and bond. $3,000.00 has been spent in repaying some small loans and $37,000.00 has been expended on legal fees. He has borrowed substantial amounts from friends to pay legal costs. In other words, leaving aside any liability for costs, the plaintiff has the gallery business, which will provide some income if it continues, his paintings worth about $10,000.00 and that is all. What he claims from the estate is an amount sufficient to enable him to purchase a suitable two bedroom apartment. The somewhat scrappy evidence as to this being that various apartments are available at figures around $450,000.00. Evidence such as this presents problems unless the parties come to some sensible agreement. It is obvious enough apartments are available for less than that and more than that. Financial position of beneficiaries 28 Mrs Hinchcliffe is a pensioner. She owns a unit in Cremorne worth $210,000.00 and has $45,000.00 in a cash management fund. She has a motor car worth $14,000.00; shares worth $8,000.00 and about $3,000.00 in bank accounts. Her expenses are about $240.00 per week and she uses up the whole of her pension, which is $207.00 and interest of about $45.00 per week from the cash management fund for expenses. She was of course the deceased's only surviving sibling. She gave a great deal of assistance to her brother during his life. She had a considerable claim on his bounty. 29 Mrs Winten is aged 47. She and her husband have two children aged 18 and 15. Mrs Winten and her husband have a joint weekly income after tax of $2,500.00, which covers their considerable expenses. They have a house worth $1,200,000.00, a car valued at approximately $44,000.00 and furnishings and paintings of $100,000.00. They have a mortgage liability of $280,000.00 and thus net assets of $1,064,000.00. Mrs Winten was also an obvious recipient of the bounty of the deceased but her financial position need not be taken into account in determining this matter. 30 The position of Mr Fenn Hinchcliffe is not quite so good. He is divorced and has a daughter, who for the most part he supports, although his former wife has paid the school fees for four years. Once again he had a proper claim upon the bounty of the deceased, but his financial position is not such as it has to bear upon the decision in this matter. Costs 31 In some ways the most alarming aspect of this action is the evidence as to costs. There were costs amounting to $36,207.00 incurred by the plaintiff prior to the commencement of the proceedings, but these were in relation to negotiations for provision from the estate and can be taken to be part of the costs of this claim. The evidence of Mr Gray was that to 22 October 2002 costs of $214,969.00 had been incurred of which $160,000.00 had been paid. The plaintiff explained that he had borrowed some part of this from friends. In addition Mr Gray estimated that costs up to the conclusion of the hearing, together with counsel's fees and with GST added would amount to $42,762.00 making total costs for the plaintiff of $257,731.00. As the hearing did not take the five days estimated this total would probably be reduced by about $7,000.00. The plaintiff in evidence said he had seen Mr Gray on hundreds of occasions. That was probably an exaggeration, but even if halved would point to a problem. 32 The defendant's costs are just as alarming and are said to be approximately $215,800.00. Once again as that figure was based on a hearing time of five days, it should probably be reduced by about $8,000.00 to a figure of about $207,000.00. Some of those costs have been ordered to be paid by the plaintiff, but that really makes no difference to the total costs said to be incurred in this action which amount to about $457,000.00 33 These figures indicate a clear case of litigation having got out of control. I say that in general terms because the figures were just placed on affidavit and were not subject to any challenge and the solicitors were not called upon or required to justify the amounts charged. The estate was a reasonably modest one by present day standards when the value of the real estate represented by shares in the company is taken into account. The case was conducted efficiently by counsel and I am not suggesting that time was wasted during the hearing. In particular counsel did not cross-examine witnesses when there would have been little, if any, purpose in so doing. The fact remains however that it is difficult to see how costs of the amounts charged could be justified for an action of this kind. Finding on relationship 34 I have come to the conclusion that the plaintiff has not established a de facto relationship with the deceased at the date of death. I have reached that conclusion in view of the matters referred to, which have, I think, covered the matters set out in s4(2) of the Property (Relationships) Act 1984. It is however necessary to make a determination as to the question of sexual relationship. The plaintiff differentiated between a sexual relationship and such an arrangement involving intercourse. No particular explanation was given of this. I consider that the plaintiff's evidence of intercourse in 1988 ought to be accepted. There may have been odd occasions when intercourse took place after that, but I am not satisfied it was regular. I am not satisfied that there was any continuing sexual relationship between the parties and it is accepted that there was none towards the end of the deceased's life. In a matter such as this it is necessary to make a determination bearing in mind the plaintiff's evidence and the written statements of the deceased bearing in mind one cannot be challenged by cross-examination and the other is difficult to challenge without instructions from the deceased. There is no doubt that by the time the deceased made his written statements his relationship with the plaintiff was becoming strained. His statement to his niece "we are not lovers" was, I find, true at that time. The evidence shows that the deceased was coming to the conclusion that in some way the plaintiff would endeavour to harm the interests of the beneficiaries under the will. That would be a reason for the deceased committing to writing the statements which he did. This is a difficult question, but I thought that the plaintiff's oral evidence as to the first occasion of intercourse at least, was reasonably convincing. In itself, of course, it was not sufficient to determine that he and the deceased were living together as a couple at the date of death. 35 The principal facts which lead me to conclude that there was no de facto relationship are that the parties did not share a bedroom, that the plaintiff was paid a wage for his work as carer, which was his principal work, that it was necessary for the plaintiff and the deceased to always appear together as this was part of the necessary responsibility of the plaintiff as carer for the deceased; that there was no joint acquisition of property and the deceased was possessive of his own property, such as the gallery; the fact that the shared life was at least to some extent the natural result of the deceased's disabilities and his need for constant care. I accept that as a matter of reputation to outsiders the plaintiff and the deceased may, to some, have looked like a couple. I accept also that it is unlikely that the plaintiff would have remained in employment for a long as he did, had he and the deceased not both been homosexuals. I am not satisfied that there was mutual commitment to a shared life as opposed to a life between carer and person given care. I consider the fact that the plaintiff never claimed or suggested that he was the deceased's lover or de facto or partner until these proceedings were commenced, is of some significance. I also think that statements made by the deceased to Mrs Hinchcliffe about the relationship are significant as is the letter making a claim for further consideration. In addition, the fact that Mr Winten was appointed attorney, not the plaintiff, is a relevant fact, as is the undoubted fact that the deceased was anxious to put on record his version of the relationship. There is no reason to suggest this was in spite or done out of sheer nastiness. Finally I consider and find that the plaintiff's evidence was given in a way to indicate a joint life which did not exist. It was the deceased who had dinner parties, the deceased who invited guests, the deceased who decided on exhibitions. These were not joint decisions for joint occasions. 36 I also bear in mind the fact that it is not appropriate to consider that de facto relationships must be perfect relationships when it is always accepted that marriages are not perfect all the time. It is easy to place too great importance on the fact that a domestic relationship has its ups and downs. As against this persons can be in a loving relationship but not a de facto relationship. Employers and employees can develop that relationship. It is to be remembered that the plaintiff always considered that he was entitled to wages and did not consider this entitlement had somehow vanished during the period when the wages were not paid. In the long run I accept the evidence that while the deceased clearly treated Mr Shephard as his lover and partner, he did not treat the plaintiff as such. Mutuality is in general required to establish such a relationship. It is required to make two persons a couple. The claim for a de facto relationship is not made out.

Hooper v Winten

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

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