McKENZIE v BADDELEY

Court of Appeal (NSW)|1991-11-06|Before: Priestley JA, Meagher JA

McKENZIE v BADDELEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA and Hope AJA 6 November 1991, 3 December 1991

Facts: Appellant, homosexual lover of deceased, seeks order in Equity Division making provision out of estate. Master orders that question of eligibility to be determined separately, and finds that the appellant was not an eligible person. On appeal: should the court come to a different conclusion on the question of the appellant's eligibility to make an application for provision pursuant to s7 of the Family Provision Act 1982. Held (per Priestley JA, Hope AJA):

(1) The appellant was dependant upon the deceased for the ability to grow and sell vegetables and make money necessary for his daily life. This consideration shows clearly that the appellant was partly dependant upon the deceased. "Partly" in the phrase "partly dependant" does not mean "substantially". It suggests "more than minimally" or "significantly".

(2) This is not a case where "the subtle influence of demeanour" could rationally play a part in deciding the question whether the appellant was partly dependant on the deceased as the conclusion is based on materials which were beyond dispute at the hearing.

(per Meagher JA dissenting): 1) Dependant refers to a financial, economic or material dependency, and certain trivial activities should be disregarded, even if they literally come within these principles.

The Master must be taken to have disbelieved that the growing of vegetables was a minor commercial activity and the Court is bound by his finding.

Abalos v Australian Postal Commission (1990) 171 CLR 167 Aafjes v Kearney (1976) 50 ALJR 454 Ball v Newey (1988) 13 NSWLR 489 Benney v Jones (NSW Court of Appeal, 18 June 1991, unreported)

Priestley JA Mr K McKenzie, the appellant, was the plaintiff in a summons in which he sought, in this court's Equity Division, an order making provision for him out of the estate of the late Mr F S Burton, under the Family Provision Act 1982 ("the Act"). Master Windeyer ordered that the question whether the plaintiff was an eligible person within s6 of the Act be determined as a separate issue. He then dealt with that issue and found that the appellant was not an eligible person. He therefore dismissed the summons with costs. The appellant appealed.

The only question for this court is whether the court should come to a different conclusion on the question of the appellant's eligibility to make an application for provision out of the estate pursuant to s7 of the Act. The only paragraph of the definition of "eligible person" in s6 of the Act into which the appellant could fall is par (d). To come within that paragraph the appellant had to show that at some time he was wholly or partly dependent upon Mr Burton and had at some time been a member of a household of which Mr Burton was a member.

The evidence before the Master in my opinion clearly showed that the appellant was a member for some years before Mr Burton's death of a household of which Mr Burton was a member. Master Windeyer indicated in his reasons that he took this view. However, in his opinion the appellant had not shown that he was wholly or partly dependent upon Mr Burton at any time.

The evidence upon which the appellant relied to show that he had been at least partly dependent upon Mr Burton was as follows.

In mid 1981 the appellant went to live on Mr Burton's property near PambulA He then had a caravan, a vehicle and some tools and machinery. Until he took the caravan to Mr Burton's property, he had had it in a caravan park. For this, I note, a charge is usually made. The value of his possessions when he moved to the property was not the subject of evidence. As at January 1991 the appellant estimated the total value of corresponding items as $4,300, a figure that was not challenged before the Master. He had no other assets. His only regular income was a social security pension, which in January 1991 was $148.35 per week. At the time when the appellant moved on to the property Mr Burton was seventy-six and the appellant fifty-one. At some stage, not specified in the evidence, their relationship became, if it had not already been, a homosexual one. Precisely what this involved was not the subject of evidence, beyond the appellant's statement that they frequently shared the same bed. The detail of their sexual relationship is in any event not relevant. The fact that it existed is relevant in that it shows there was an emotional attachment between them and is one of the factors explaining the care and assistance given by the appellant to Mr Burton in his declining years. Mr Burton was weak and ill for a considerable part of the two years before his death on 18 May 1989. The appellant did work of various kinds on Mr Burton's property from the time he first went there to live. As part of the same household, they did many things together. This included eating meals together, sharing of household chores and shopping. The appellant lived partly in his caravan and partly in the farmhouse. He was not charged any rent either for the parking of the caravan or for living in the house. The two men shared the gas and electricity bills. The appellant grew the vegetables they used in their meals. Mr Burton provided eggs and poultry.

The evidence to this point may well be at least as consistent with non dependence as with partial dependence. However, there was further evidence which the Master did not think of any significance but which in the circumstances of the appellant seems to me to merit more consideration than the Master gave it. Some of this evidence appears in the cross examination of the appellant:

"GILMOUR: Q You haven't talked about any joint bank accounts in the affidavit have you, between you and Mr Burton? A I didn't wish to.

Q There was no sharing of bank accounts, was there? A No.

Q And in fact Mr Burton kept some money in a jar in his house for his own expenses? A Yes.

Q And your money was kept quite separate? A Well that was not necessary sometimes. If we wanted money to pay the butcher or the baker we took it out of one lot or the other. We depended on each other.

Q How much per week are you allowed to earn, as a pensioner? A Twenty dollars and fifty cents.

Q And you earned some of this money by growing vegetables? A Yes.

Q You grew vegetables? A Yes. Q And he provided eggs and poultry? A Yes.

Q Did you have any signs up outside the house that you were selling vegetables? A No.

Q It was purely by word of mouth? A Yes. Q So it wasn't a business? A No.

Q It was more on the lines of a hobby but earned some pin money? A Yes. "

Whatever the appellant may have understood by the last two questions or intended by his answer to them, there was plenty of other evidence, all on affidavit, about the small amount of money he made from growing and selling vegetables. Mr Carthew said he knew both Mr Burton and Mr McKenzie well and visited them on Mr Burton's property. He said Mr Burton allowed Mr McKenzie "to use part of his property to grow vegetables which Ken then sold locally" (par 3). Dr Jenkins said that over the years he bought vegetables occasionally from Mr McKenzie and Mr Burton (par 2). Mr Lamerton, the Rector of the local Anglican Church said he visited "the residence of the late Francis Burton and Kenneth McKenzie to buy vegetables". This was on a weekly basis (par 2). Mr L Powell, the proprietor of a restaurant at Pambula said that he observed the appellant working all day on the vegetable garden (par 8). Mr P. Prince, a local resident and retired Lieutenant Colonel said that he made weekly purchases of vegetables and eggs at Mr Burton's property (par 1). Mr D Ryzy, a neighbour, said he bought flowers and vegetables from the two men regularly (par 5). Mr V L Thompson, a retired shopkeeper, said he knew the two men during the time he had a store at Pambula Beach. He said the appellant "grew vegetables and supplied vegetables to me for sale in my store" (par 2).

The picture presented by the affidavit evidence is uncontradicted and clear. It shows a regular course of selling vegetables to a number of regular customers. On the evidence, the amount made by the appellant should not have exceeded $20.50 a week. In commercial terms what he did was on a tiny scale, but it was regular, and it was real.

In all the circumstances in which the appellant lived with Mr Burton, it seems to me, with respect to those who take a different view, obvious that the appellant was to some extent dependent in the material sense upon Mr Burton. Consider the appellant's position. At the age of fifty-one he had no property to speak of and no source of income except a pension. Then for eight years he lived on close terms with another man, on that man's property, rent free. It seems certain that as his pension in January 1991 was $148.35 per week it must have been significantly less than that during much of the period from 1981 to 1989 when he was living with Mr Burton. Mr Burton, as well as providing accommodation for the appellant allowed him to use part of the property for the growing of vegetables. This apparently took a substantial part of the appellant's time; the vegetables were used for meals for the two men and the surplus sold in a way that brought a small income to the appellant. Counsel for the estate in the cross examination I have set out earlier suggested this amount was so trivial as to warrant being called "pin money", and the Master said:

"So far as the vegetable growing is concerned even if the provision of the land rent free, is relevant, which I doubt, there is nothing to show the plaintiff needed or required the small amount of income raised from vegetables for his material needs".

I take quite a different view of this evidence. Kipling illustrated the need for people to try to understand the difficulties of those worse off than themselves:

"The toad beneath the harrow knows Exactly where each tooth-point goes; The butterfly upon the road Preaches contentment to that toad. "

To a man in his fifties, receiving something less than $150 a week from the government, with negligible property and no job, nor any prospects of improving his position, an extra $20 a week is a matter of real importance. In my view, in the most materialistic sense of the word "material", the appellant had a material

need for whatever money he could make from the growing of vegetables upon Mr Burton's land and their later sale. He was quite literally dependent upon Mr Burton for the ability to grow and sell the vegetables and make what may have appeared to counsel to be pin money but which must have been to him money necessary for his daily life.

This consideration, taken with the other facts, seems to me to show quite clearly that the appellant was partly dependent upon Mr Burton. The word "partly" in the phrase "partly dependent" in par(d)(i) of the definition of "eligible person" is a word of some elasticity; it does not seem to me in its context necessarily to mean "substantially"; rather it suggests to me the meaning of "more than minimally" or, perhaps, "significantly".

I have come to a different conclusion from the Master on the question of dependence notwithstanding that he had the advantage of seeing and hearing the appellant in the giving of evidence and I have not had that advantage. However, my conclusion is based on materials, which so far as I can see, were beyond dispute at the hearing. This does not seem to me to be a case where "the subtle influence of demeanour" could rationally play a part in deciding the question whether the appellant was partly dependent upon Mr Burton.

In dealing with the evidence that was before the Master, I have tried to keep myself to the evidence on the question of dependence. There was much more evidence in the case which would be relevant to the questions whether there were factors warranting the making of the application by the appellant (see s9), and the extent of Mr Burton's moral obligation to him. Those questions remain to be dealt with in these proceedings, and I need say no more about them than to note that the questions of partial dependence, factors warranting, moral obligation and the size of any provision ordered, although they will all have elements in common, are separate questions. The degree of dependency for example has no necessary relation to the size of any eventual provision. In some cases an applicant eligible only by partial dependency may find that element in the application reflected in an order making provision which will be comparatively small by reference to the size of the estate. Depending on the circumstances, however, eligibility via partial dependency could result in provision indistinguishable from what would be ordered in the case of an eligible person wholly dependent upon the deceased.

The only matter decided at this stage of these proceedings is that of eligibility. These reasons are not directed to any of the other questions I have mentioned; they will be dealt with when this case next comes before the Equity Division.

In my opinion the appeal should be upheld, the Master's orders set aside, the question whether the appellant was an eligible person within s6 of the Family Provision Act should be answered yes and the costs of the proceedings to this point, both in the court below and in this court should be borne by the estate.

Meagher JA This is an appeal from a decision by Master Windeyer by a Mr McKenzie, the homosexual lover of one Francis Stanley Burton, now deceased, of whose estate the respondent is administratrix. The decision, which the Master tried as a separate issue, was that the appellant was not an "eligible person" within the meaning of s6 of the Family Provision Act 1982. Paragraph (d) of the statutory definition is the only paragraph which matters. That is: "eligible person', in relation to a deceased person means - (d) a person - (i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of a household of which the deceased person was a member".

The Master held that Mr McKenzie was "a member of the household of which the deceased person was a member", so that the requirements of sub-paragraph(ii) were satisfied, but that he was not "wholly or partly dependent" on Mr Burton, so that sub-paragraph(i) was not satisfied. I entirely agree. Indeed I would be respectfully content to adopt the judgment of the Master as my own were it not that deference to the learned and detailed submission of counsel require the making of some additional observations.

The effect of the evidence, which was all filed on behalf of Mr McKenzie, can easily be summarized. Mr McKenzie, a pensioner, was about 50 years of age in 1979 when he met Mr Burton, an oyster farmer. At this stage Mr McKenzie was living in a caravan at Pambula. At Mr Burton's suggestion, Mr McKenzie in 1981 moved his caravan next to Mr Burton's house. Thereafter the two gentlemen did most things together. They took it in turns to do the washing and cooking, although Burton did most of the ironing. They exchanged birthday gifts. They socialized together. They shopped together. They co-hosted afternoon drinks. They mostly slept together. Rarely did either man go alone anywhere. In addition, Mr McKenzie grew vegetables on Mr Burton's land, mainly for their joint consumption although also to some undefined extent for resale. Despite their modest circumstances, they lived well although not in a princely fashion.

Certain preliminary observations should be made. First, to my mind the fact that the relationship was homosexual is of no legal relevance; as far as sub-paragraph (d) is concerned the case should admit of the same answer as if either of the pair were a woman. Secondly, the fact that they had an active sexual relationship (if that be a fact) is of no legal relevance. Thirdly, it is obviously true that Mr Burton became dependent on Mr McKenzie, but that does not mean that Mr McKenzie was dependent on Mr Burton.

It is well established by the authorities in this court that "dependent" in the Family Provision Act 1982 refers to a financial, economic or material dependency, not a mere emotional dependency. So much was decided in Ball v Newey (1988) 13 NSWLR 489, and again in Benney v Jones (Court of Appeal, 18 June 1991, unreported). Further, judicial exploration of the legal nature of "dependency" may be found in the judgment of Gibbs J in Aafjes v Kearney (1976) 50 ALJR 454 at 458. It is true that that case was not dealing with the Family Provision Act but was dealing with workmen's compensation legislation, and it is also true that great caution must be exercised before one transposes the meaning of a term in one Act to the same term in another Act. Nonetheless I find his Honour's analysis both relevant and helpful in the present context.

"In Kauri Timber Co (Tas) Pty Ltd v Reeman (1973), 128 CLR 177, at pp. 188-189, I accepted that one person is dependent on another for support if the former in fact depends on the latter for support even though he does not need to do so and could have provided some or all of his necessities from another source. I adhere to that view but it does not follow from it that a person who in fact receives some support from one person cannot properly be said to be wholly dependent on another. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. The question whether there is in fact dependence or reliance at the date of death is not to be answered by looking only to the circumstances as they existed at that date; 'past

events and future probabilities" have to be considered: Lee v George Munro (1928), 21 BWCC 401, at p. 408. The fact that at the date of death a daughter was being supplied with some of the necessities of life by some third person does not necessarily mean that she was not then wholly dependent for her support upon her father. Obviously enough if the assistance provided by the third person was only intermittent or casual, and unlikely to be continued in the future, it would not prevent the daughter from being wholly dependent on her father: cf. the cases cited in Kauri Timber Co (Tas) Pty Ltd v Reeman, at p. 188. But even if the assistance was substantial and likely to be continued, it would not necessarily have the effect that the child had to be regarded as a partial dependent of her benefactor and therefore as now wholly dependent on her father. For example, a child whose home was in the country and who lived with her grandparents while attending a school in the city would not for that reason alone cease to be wholly dependent upon her father."

To these principles, I would add but one small rider. Common sense requires that certain trivial activities should be disregarded, even if they literally come within the above principles. For example, if my housekeeper uses some of her employment hours in knitting garments which she occasionally sells at her church bazaar, nobody would allege that the knitting activities made her dependent on me, even partly.

It is in this context that one must consider the assertion that Mr McKenzie was dependent on Mr Burton. Are there any factors of a non-trivial kind which demonstrate an economic, financial or material dependency? It was submitted that a dependency arose out of three factors: he grew vegetables on Mr Burton's soil, he used certain derelict sheds from time to time to store some of his gardening implements, and he shared Mr Burton's bed. As far as the first is concerned, the Master came to the conclusion that the activity was too trivial to take into account. He had good reason to do so. Insofar as vegetables were sold to the public, there is no evidence of how many times this happened, or what the proceeds of sale were. Moreover, in cross examination Mr McKenzie said that the growing of vegetables was a hobby rather than a business. The Master was clearly entitled to, and did, believe this evidence. During submissions, counsel for Mr McKenzie sought to point to other evidence which would magnify the activity into something approaching a minor commercial activity. To my mind the evidence pointed to would not justify this conclusion, but in any event, even if it did, the Master must be taken to have disbelieved it and we are bound by that finding: Abalos v Australian Postal Commission (1990) 171 CLR 167. As far as the second was concerned, even counsel for the appellant eventually conceded its triviality. As far as the third was concerned, the facts were that in his caravan he had available his own bed, which he used when it suited him. The fact that he also

crept into his lover's bed in the house when it suited him does not establish dependency.

(By majority)

Appeal allowed.
The Master's orders set aside.

The question whether the appellant is an eligible person within s6 of the Family Provision Act should be answered yes.

The costs of the proceedings to this point, both in the court below and in this court should be borne by the estate.

Counsel for Appellant: P W Bates Solicitor for Appellant: Thomson Rich O'Connor and Coleman Counsel for Respondent: Mrs M A Gilmour

Solicitor for Respondent: Constantine Christopher and Assoc

At a glance

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Judgment (53 paragraphs)

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Cases Cited (3)