JUDGMENT
1 HIS HONOUR: These are proceedings under the Family Provision Act 1982.
2 By Summons filed on 15 July 2004 Milko Kolar claims an order for provision for his maintenance and advancement in life out of the estate and/or notional estate of the late Dusan Dernovsek (to whom I shall refer as "the Deceased").
3 The Deceased, who was unmarried and childless, died on 22 January 2004, aged 75. He left a will dated 10 October 2001, probate whereof was on 23 February 2004 granted to Magda Dernovsek and Vladimir Borisov, the executors named in such will (who are the Defendants to the present proceedings).
4 By that will the Deceased made gifts of three chattels (including a gift to the Plaintiff of a 1992 Mercedes Benz motor car), and gave three pecuniary legacies (including a gift to the Plaintiff of $25,000). The Deceased gave the residue of his estate to his sister Magda Dernovsek, the first Defendant herein.
5 The inventory of property discloses the following assets of the Deceased:
House property situate at and known as 6 Drummoyne Avenue, Drummoyne, to which an estimated value of $3,100,000 was ascribed
House property situate at and known as 1 Bridge Street, Balmain, to which an estimated value of $1,350,000 was ascribed
Commercial and residential properties situate at and known as 17 Hollywood Avenue, Bondi Junction, to which an estimated value of $2,950,000 was ascribed
Moneys held in bank accounts and term deposits, $317,060
Furniture and contents in Drummoyne property and Balmain property, having an estimated total value of $61,000
Loan under promissory note, $22,900
1992 Mercedes Benz motor car, having an estimated value of $16,600
Shares, having a total value of $15,031
Income tax credit, $37,694
Rental income, $14,579
Medical benefits refunds, $730
6 The totality of the assets of the Deceased in New South Wales are shown as having a total value of $7,885,603. No liabilities are disclosed.
7 The inventory of property also discloses the following assets solely owned by the Deceased overseas:
Land and pine forest in Tirna, Slovenia
House and contents in Sava, Slovenia
8 The will is expressly stated to take effect and operate only as regards that part of the estate and property of the Deceased which is situated in Australia at the date of the death of the Deceased. The will further states,
that contemporaneously with the execution of this Will I am executing a separate Will which is to take effect and operate as regards that part of my estate and property which is situated outside Australia in Slovenia.
9 The jurisdiction of the Supreme Court of New South Wales to grant the relief sought by the Plaintiff is limited to the assets of the Deceased which are disposed of by the will of the Deceased which has been admitted to probate in New South Wales (Family Provision Act, sections 7 and 14(1)(a)).
10 The estate has been fully distributed. The legacy of $25,000 was paid to the Plaintiff and the motor car was transferred to him in about late March 2004. The real property has been registered in the name of the second Defendant. The property at Drummoyne has subsequently been sold by her for $3,350,000.
11 It will be appreciated that in calculating the value of the estate available for distribution the costs of the present proceedings must be taken into account, since, irrespective of the outcome of the proceedings, the Defendants are entitled to have their costs paid out of the estate, and the Plaintiff, if successful, will also be entitled to receive his costs out of the estate. It is estimated by the Plaintiff that his costs total about $110,000 whilst those of the Defendants are estimated to total about $140,000.
12 It is appropriate here to record that the Plaintiff was legally represented from the institution of the proceedings until 4 May 2005.
13 On 10 December 2004, consequent upon application by the Plaintiff for expedition, the hearing was specially fixed for Monday, 2 May 2005, the Court reserving five days for the hearing (being 2 to 6 May 2005). At the commencement of the hearing and throughout 2 and 3 May the Plaintiff was represented by Solicitor and Counsel. On the morning of Wednesday, 4 May, Counsel for the Plaintiff informed the Court that, in the circumstances which she then outlined, the retainers of herself and her instructing Solicitor had been withdrawn by the Plaintiff. A notice of intention to act without a Solicitor, pursuant to Part 66 rule 6 (1) of the Supreme Court Rules, was thereupon filed on behalf of the Plaintiff. Thereafter the Plaintiff conducted his case in person, without legal representation. I should here record that the Plaintiff was fluent in the English language.
14 It was the case for the Plaintiff that he is an eligible person in relation to the Deceased, in that he is a person with whom the Deceased was living in a domestic relationship at the time of the death of the Deceased (paragraph (a)(i) of the definition of "eligible person" contained in section 6(1) of the Act); and also, in that he was partly dependent upon the Deceased and was a member of the same household of which the Deceased was a member (paragraph (d) of the foregoing definition).
15 It was not asserted on behalf of the Defendants that there is any other person who is or who may be an eligible person in relation to the Deceased.
16 It will be appreciated that, unless the Plaintiff is an eligible person in relation to the Deceased, he does not have the standing to bring the present proceedings, and his claim must be dismissed.
17 The Plaintiff was born in Slovenia on 7 August 1968 and is presently aged 37. After completing high school at the age of 19, he attended university in that country for two years, but did not complete his degree. In the mid-1990s the Plaintiff conducted a small grocery business in Slovenia, which he sold in about 1997.
18 In that year the Plaintiff came to Australia for a holiday, holding a tourist visa. He arrived in Adelaide in March 1997, and then came to Sydney in about June of that year. According to the Plaintiff he met the Deceased at the end of July 1997.
19 The Deceased, who had also been born in Slovenia, on 27 July 1928, had arrived in Australia in 1950. He became an Australian citizen in 1957.
20 The Deceased had been successful in Australia in his business activities and in his investments. He had also acquired a significant asset (the house property at Balmain) by inheritance.
21 It was the practice of the Deceased, in the later years of his life, to visit his native country of Slovenia at least once each year. It was quite apparent that the Deceased had a close relationship with the members of his family who remained in Slovenia. Those family members included his mother (who is now deceased), his sister Magda, the first Defendant, another sister (who is now deceased) and his nephew Vladimir, the second Defendant (who is the son of the first Defendant). The difference in surname between the two Defendants is explained by the fact that the marriage of the second Defendant's parents terminated in divorce, whereafter the first Defendant ceased to use her former husband's surname.
22 Each of the Deceased's mother and his now deceased sister visited him in Australia on several occasions. The first Defendant visited the Deceased in Australia on many occasions. Indeed, in 1960, she spent a period of a year staying with the Deceased in this country, at a time when she was suffering problems in her first marriage. The second Defendant regularly visited the Deceased in Australia. The second Defendant's wife Tatjana Borisov, also visited the Deceased in Australia in the later years of his life. When the foregoing kinsfolk of the Deceased came to Australia it was their invariable practice to stay with him in his residence at Drummoyne. Very considerable evidence was given by each of the Defendants and by the second Defendant's wife, Tatjana, concerning their observations of the Deceased's lifestyle and domestic circumstances during the periods of their respective visits to him and their occupation of the Drummoyne residence.
23 The Deceased in his later years suffered from a number of health problems. He had a heart condition which required by-pass surgery in 1987 and the insertion of a pace-maker in 1991. He continued to suffer from cardiac problems, and from conditions relating to his circulation, until the time of his death. However the cause of his death on 22 January 2004 was ultimately established to be a melanoma. Both the second Defendant and Mrs Tatjana Borisov were in Australia, staying at the Deceased's residence, at the time of his death. The first Defendant, who had been summoned urgently from Slovenia when the Deceased's health deteriorated in January 2004, arrived in this country on the day of his death, 22 January, after the Deceased had died.
24 At the time when the Plaintiff met him in 1997 the Deceased was residing in a house property which he had purchased in 1979, situate at and known as 6 Drummoyne Avenue, Drummoyne (to which I shall refer as "the Drummoyne residence"). The Plaintiff at that time was aged only twenty-nine or thirty. The Deceased was aged almost sixty-nine.
25 According to the Plaintiff, he and the Deceased soon became good friends and within a matter of two months had formed a sexual and emotional relationship. It was the Plaintiff's evidence that he spent about four days out of seven with the Deceased at the Drummoyne residence and that he helped the Deceased with shopping and with cooking, and in tending the Deceased's extensive collection of pot plants. The Plaintiff said that on a regular basis he and the Deceased together attended private dinner parties and places of public resort.
26 According to the Plaintiff's affidavit of 19 October 2004 he disbursed the legacy of $25,000 by paying $10,000 towards legal fees which he had already incurred, and by using the remaining $15,000 to pay what he described as "some of my outstanding accumulated debts at the time".
27 According to that affidavit, the Plaintiff's assets consisted of a minimal amount in a cash management call account with the Commonwealth Bank of Australia, Wynyard Branch; a motor vehicle (which I assume to be the Mercedes Benz motor car which he received under the terms of the will), which according to the Plaintiff was not in a driveable condition, to which an approximate value of $2,000 was ascribed, and household items, to which an approximate value of $1,000 was ascribed.
28 The Plaintiff's liabilities at that time consisted of the following,
Accumulated private loans from friends - about $20,000
Pre-application fee to the Department of Immigration - $1,000
Outstanding utility bills - $1,390
Unsettled immigration fees - $21,300
Unpaid solicitors costs - $19,800.
29 According to the Plaintiff his current weekly living expenses were as follows:
Rent - $420
Food - $100
Entertainment/hobbies - $70
30 It was the Plaintiff's evidence that since the death of the Deceased he had spent about $3,100 on medical, dental and health care costs.
31 The Plaintiff's current status in Australia was under a visa which did not allow him to work and did not allow him to study. It was the Plaintiff's evidence that he was "going through a period of financial instability and hardship caused by uncertainty attached with [sic] my visa status and immediate future in this country". From March 1998, when the Plaintiff's tourist visa expired, until December 1998, when he returned on a fresh tourist visa, the Plaintiff was out of Australia. Throughout that period he and the Deceased maintained regular contact, both by telephone and letter and in person during a visit by the Deceased to Slovenia and Italy. In August 2002 the Deceased and the first Defendant each wrote a letter in support of the Plaintiff's application for residence in Australia. That application was unsuccessful.
32 In his affidavit of 28 April 2005 (which was filed on 2 May 2005, on the first day of the hearing) the Plaintiff brought up to date the financial position which was disclosed in his affidavit of 19 October 2004. His assets had diminished, to consist only of household items (to which he ascribed a value of about $1,000) and an account with the Commonwealth Bank, having a credit balance of about $1,000. The liabilities disclosed in that affidavit included an application fee with the Department of Immigration in an amount of about $1,000, an indebtedness to Dr. Debbie Hill for about $300, what was described as "unsettled immigration fees" in an amount of about $21,300, and unpaid solicitors costs totalling about $75,000.
33 In his evidence in chief the Plaintiff said that he had very recently sold the Mercedes motor vehicle for $1,000, on 20 April 2005. Dr. Debbie Hill was a medical practitioner whom the Plaintiff had consulted.
34 It was also the Plaintiff's evidence in chief that he was indebted to various friends, from whom he had received loans in amounts totalling between $25,000 and $30,000. The Plaintiff said that he would repay those loans when he was able to do so.