Pollock v New South Wales Trustee & Guardian

Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Ingamells v Western Australian Trustees Ltd (Supreme Court (WA), 5 March 1993, unrep) Jonah & White (2011) 258 FLR 236; (2011) 45 Fam LR 460 Kogan v Martin [2019] EWCA Civ 1645 Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam) Light v Anderson [1992] NSWCA 136 Longman v R (1989) 168 CLR 79; [1989] HCA 60 Lynam v Director General of Social Security (1983) 52 ALR 128 McCosker v McCosker (1957) 97 CLR 566; [1957] HCA 82 Minister for Immigration and Border Protection v Angkawijaya (2016) 236 FCR 303; [2016] FCAFC 5 Na v Tiu (No 2) [2017] FamCAFC 269 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Nominal Defendant v Smith [2015] NSWCA 339 Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Petersen v Gregory; Estate Glenn Alfred Petersen [2007] NSWSC 8 Piras v Egan [2008] NSWCA 59 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Quijarro v Robson [2008] NSWSC 818 Re Dennis (Deceased) [1981] 2 All ER 140 Richardson v Armistead [2000] VSC 551 Robson v Quijarro [2009] NSWCA 365 S v B (No 2) [2005] 1 Qd R 537; (2004) 32 Fam LR 429; [2004] QCA 449 Sadiq v New South Wales Trustee and Guardian [2015] NSWSC 716 Sadiq v NSW Trustee and Guardian [2016] HCASL 180 Sadiq v NSW Trustee and Guardian [2016] NSWCA 62 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 Scragg v Scott (2006) 25 FRNZ 942; [2006] NZFLR 1076 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Smoje v Forrester [2017] NSWCA 308 Smyth & Pappas [2011] FamCA 434 Sun v Chapman (No 2) [2021] NSWSC 1231 SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1; [2015] FCAFC 69 Thomas v The Times Book Co [1966] 2 All ER 241; [1966] 1 WLR 911 Vaughan v Hoskovich [2010] NSWSC 706 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Webb v Ryan [2012] VSC 377 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 Ye v Fung [2006] NSWSC 243 Zahra v Francica [2009] NSWSC 1206 Texts Cited: P McClellan, "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Shorter Oxford Dictionary (2007, 6th ed) Category: Principal judgment Parties: Christine Winifred Pollock (Plaintiff) NSW Trustee & Guardian (Defendant) Representation: Counsel: P Wallis (Plaintiff) L Ellison SC and Ms A Djukanovic (Defendant)

Solicitors: Selvaggio Lawyers (Plaintiff) NSW Trustee & Guardian (Defendant) File Number(s): 2021/197063 Publication restriction: Nil

Introduction

1. These proceedings concern the estate of Geoffrey James Benfield (the deceased) and the claim brought by the Plaintiff, Christine Winifred Pollock, for an order seeking provision under Ch 3 of the Succession Act 2006 (NSW) (the Act), and an order for her costs of the proceedings to be paid out of the estate.
2. A family provision order is one for the maintenance, education, or advancement in life of an eligible person. Relevantly, the Act applies in respect of the estate and notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
3. The deceased died on 26 September 2020, aged 70 years. He married his wife, Beverley Dawn Benfield, in March 1972 and they separated in 1996. A divorce order was made in relation to their marriage on 12 January 1999 and it became effective on 13 February 1999 (Ex. D1).
4. There were three children of the marriage being, Trenton James Benfield, who was born in April 1974, Dean Andrew Benfield, who was born in June 1976, and Wayne Mark Benfield, who was born in July 1979. Each was a witness, whose affidavits were read in the Defendant's case, and each of them was cross-examined.
5. For the sake of convenience and clarity, I shall refer to the witnesses, after introduction, by his, or her, given name. No undue familiarity is intended.
6. The deceased left a duly executed Will made on 13 October 1978, in which he appointed the Public Trustee in, and for, the state of New South Wales, as the executor and trustee of his estate. Paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW), which commenced on 1 July 2009, provides that a reference to the Public Trustee is to be read as a reference to the NSW Trustee and Guardian. By Paragraph 11 of Schedule 1, the NSW Trustee and Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian is constituted as a corporation by s 5 and has the status of a NSW Government agency by s 6 of the NSW Trustee and Guardian Act.
7. This Court, on 27 April 2021, granted Probate of the deceased's Will to the NSW Trustee and Guardian, which is the named Defendant.
8. In the Will, the deceased left the whole of his estate to Beverley. In the event that she did not survive him by 30 days, the whole estate was left to his then two children, and any other child, in equal shares.

Formal Matters

1. The Plaintiff's Summons was filed on 9 July 2021, within the time prescribed by the Act (that is, not later than 12 months after the date of the death of the deceased): s 58(2) of the Act.
2. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. The Plaintiff asserted, and the Defendant disputed, that she is a person with whom the deceased was living in a de facto relationship at the time of his death: s 57(1)(b) of the Act. The Defendant did accept, however, that the Plaintiff had been a person with whom the deceased was living in a de facto relationship for a period of time, but asserted that the relationship had ended by December 2012, that is to say, before the time of the deceased's death.
3. The Defendant also accepted that the Plaintiff is an eligible person within the meaning of that term in s 57(1)(e) of the Act, namely that she was a member of the household of which the deceased was a member and was wholly, or partly, dependent on him at that particular, or any other, time. (The Plaintiff relied upon this ground of eligibility in the alternative.)
4. In their written submissions, counsel for the Defendant wrote that the Plaintiff is an eligible person within s 57(1)(d) of the Act, namely that she is "a former spouse" of the deceased. Whilst it is not necessary to determine whether that submission is correct, it seems to me, that the concession is not one that should be accepted as a matter of construction of the section. Section 57 differentiates between a person who was the spouse of the deceased at the time of his, or her, death (s 57(1)(a)) and a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death (s 57(1)(b)). Had it been intended to include the latter person in s 57(1)(d), which refers only to a former "spouse" of the deceased person, one might have expected that the words "or the person with whom the deceased person was formerly living in a de facto relationship", or some similar wording, would have been included in s 57(1)(d) of the Act.
5. In the case of a person who is an eligible person by reason only, relevantly, of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act. That turns on whether she would be generally regarded as a natural object of the deceased's testamentary recognition.

Background Facts

1. In a claim for a family provision order, factual context is necessary. It is convenient, next to set out some of the background facts, since these provide that context. Many of these facts are taken from the affidavits read in the proceedings and are not in dispute. In relation to any factual matters that were in dispute in those affidavits, or otherwise, to which I refer, the facts set out hereunder should be regarded as the findings of the Court.
2. The deceased was born in February 1950. At the time of his death, in September 2020, he was 70 years old.
3. The Plaintiff was born in August 1951 and is now almost 71 years old.
4. The Plaintiff first met the deceased in 1968 when they were both teenagers.
5. In April 1972, the Plaintiff married Ross Pollock. I have already noted that the deceased and Beverley married in March 1972. All four remained friends, during the respective marriages. They attended the home of the other, went out to dinner, and otherwise socialised together.
6. The deceased and Beverley moved to the Glenorie property in about 1979. I have already referred to the three children of the marriage.
7. The Plaintiff and Ross had two children, namely, Bettina Helen Pollock, who was born in July 1978 and Sarah Jane Pollock, who was born in May 1981. The deceased was the godfather to Bettina. The affidavits of each were read in the Plaintiff's case, and each was cross-examined.
8. In about 1988, Ross accepted a job in Adelaide and the Plaintiff, he, and their two children, relocated there. On occasions, the deceased and Beverley would visit them there, and the Plaintiff and Ross would visit the deceased and Beverley when they visited Sydney.
9. In April 2000, the Plaintiff and her husband agreed to separate and in June 2000, Ross left the family home. (There was no evidence of their subsequent divorce.)
10. In about September 2000, almost 2 years after his divorce, the deceased and the Plaintiff formed a romantic relationship.
11. In June 2001, the Plaintiff sold the former matrimonial home in Adelaide and returned to Sydney with her two children. The Plaintiff and her daughters lived in a home she purchased, in early April 2002, at Kellyville. However, she would spend most weekends with the deceased, at the Glenorie property, and she also visited him there during the week.

The nature and value of the deceased's estate

1. On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendant, whether those costs have been paid out of the estate of the deceased.
2. The Schedule that was provided to the Court in hard copy, was marked as Ex JS1.
3. At the commencement of the hearing, when the Court went through Ex JS1, senior counsel for the Defendant stated that he had a different version of the document and that there was a dispute whether one of the assets (with an estimated value of $2,470,637) would be able to be realised for that amount, or at all. This meant that on the Defendant's case, the value of the deceased's estate, at the date of the Schedule, was different from that appearing in the Schedule.
4. It was obvious that the value of the estate, at the date of the hearing, would be significantly affected if the relevant asset was of lesser, or no, value (as the Defendant seemingly asserted). Agreement between the parties on this topic, could not be immediately reached and the case proceeded with the parties, and the Court, not knowing the value of the deceased's estate at the date of the hearing. The parties were requested to resolve any question relating to this dispute as soon as possible.
5. The Court raised the question of the value of the deceased's estate again several times during the hearing, and senior counsel for the Defendant, on one occasion, stated that his instructing solicitor would attend the Court later in the day (after witnesses who were giving evidence remotely had concluded giving evidence) with an amended Schedule.
6. (During submissions, I indicated that the evidence of the value of the shares in a private company that was said to be in dispute (as to its realisable value), was in the order of $2.4 million and I would use the estimate of value to estimate the value of the estate (see Tcpt, 8 June 2022, p 99(26)-100(10).)

Costs of the Proceedings

1. Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
2. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, be paid out of the estate of the deceased, while the defendants, as the persons representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that their costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
3. The Plaintiff's costs, calculated on the indemnity basis, were estimated to be $130,500 and, calculated on the ordinary basis, to be $91,350 (in each case, inclusive of GST, and based upon a hearing of 4 days duration). Costs of the proceedings, totalling $2,817, have been paid by the Plaintiff.
4. The solicitor for the Plaintiff stated in his affidavit of costs that there was a conditional costs agreement made with the Plaintiff. At the hearing, and from the Bar table, without objection, the Court was informed that the costs agreement did not include any uplift factor: Tcpt, 7 June 2022, p 16(37-41).
5. The Defendants' costs, calculated on the indemnity basis, were estimated to be $139,365 (inclusive of GST, and based upon a hearing of 4 days duration). Costs or disbursements, totalling, $15,365, have been paid from the deceased's estate, leaving $124,000 left to be paid.
6. Accordingly, if the estimated costs of the parties ($215,350) are ordered to be paid out of the estate, and if the estimate of each party's costs proves to be accurate, the value of the net distributable estate out of which an order for provision can be made is $6,342,167. It remains a large estate even after the payment of costs (if orders for costs are made).

Some general principles regarding evidence

1. It is obviously impracticable to set out the contents of the affidavits or the cross-examination in full. However, this is a case that is particularly fact sensitive. It follows that credit findings assume a greater significance. The Court is required to determine, on the balance of probabilities, taking into account s 140(2) of the Evidence Act 1995 (NSW), whether the Plaintiff has proved her case.
2. Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]: "When proof of any fact is required, the court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; [1938] ALR 334 at 342."
3. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, McDougall J, similarly, had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with "a probability in excess of 50%". His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].
4. The credibility of a witness and her, or his, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to her, or his, motives, and to the overall probabilities: Armagas Ltd v Mundogas SA (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

Contemporaneous documentary evidence about the relationship

1. There was no dispute that in 2015, the Plaintiff sought advice from a solicitor, Ms S Foote, of Collins & Thompson, in Hornsby, about her rights.
2. In circumstances that were not fully explained, a copy of the file of the solicitor who the Plaintiff saw in 2015, was not produced until the second day of the hearing and provided to the legal representatives of the parties.
3. The delay in obtaining the file, and the necessity for the legal representatives to consider its contents, required the cross-examination of the Plaintiff to be interrupted, and for her to be recalled, on the third day of the hearing, for further cross-examination, on the documents that had been produced.
4. During the cross-examination, a copy of part of the solicitor's file was provided to the Plaintiff and was subsequently tendered in the Defendant's case: Ex. D6. She was cross-examined on the contents of some of the documents.
5. I take what follows from her evidence and the solicitor's file. I do not include a reference to all of the documents forming the exhibit, which I have otherwise carefully read and considered.
6. The first document, being a handwritten file note dated 29 September 2015 of the solicitor, discloses a conference between the Plaintiff and Ms Foote for 30 minutes. It includes the following information: "2 Separation = Dec 2013 4 De facto - 2009 6 (H) Geoffrey James Benfield 8 [H] Real Estate (W) Not much 9 Written letter separation 10 Super $500K 11 (H) made (W) sell house, 2009 Sold home $400K - Gave children $100K ea, BMW in Benfield name � (H) "made" (W) sell car. Gave her BMW 17 Physical address 18 (The Glenorie property address) 21 Daughter's: address for postage 22 ### Kellyville 2155
7. There is then a copy of the letter, which other evidence confirmed had been handed by the deceased to the Plaintiff shortly after she told him that she had sought advice from a solicitor. It is not necessary to repeat the whole of the letter verbatim, but the important parts of the letter are set out below: "What happened to our almost perfect world. Both of us healthy, apparently happy, contended and without being real wealthy, were financially secure. We could have holidayed, travelled, wined, dined and generally lived a comfortable, financially unrestricted life together, forever. Why has it turned to shit? I loved, cherished, and doted on you, up to and well after the Xmas Day at Lyn and Steve's, which turned to shit. A truth surfaced that day. The venom in your voice and words, uncovered your true feelings towards me and our relationship. You had already begun to shut me out. Meaningful affection, kisses and cuddling, were gone. Then, before long, sex, something I thought we both shared and mutually enjoyed, was taken off the table. It became obvious to me then, that I had been asleep at the wheel. Our romantic relationship was over. All that remained, was a fully funded relationship of convenience and security, for you. Going back, I offered you the opportunity to move into my home, sell up and give the girls an advanced inheritance to get started. You had by far exceeded what anyone I knew, including me, had done, or could do for their children. You gave them both a big start in life, the deposit to buy their own homes. Your responsibilities as a parent, were more than done at that point. You and I should now be enjoying a happy senior's life. We should be living outside our children's lives, looking in. Not living in their lives, day in, day out. (…) I was absolutely gutted when you told me you'd seen a solicitor, to find out if and how much, you could legally steal from me, after I opened my life, my home, my possessions, my monies and all other assets, to share with you. There is around $347K in Benfield Investments Staff Super Fund in your name. As you know, because of my belief and trust in you, that money was strategically placed in your name to minimise tax liability on MY earnings, creating a nest egg, for OUR life in retirement. The fact that it's in your name, does give you a case for legal entitlement, but surely you don't truly believe you have a moral entitlement to that money. With very little income over the last two years, I have spent a substantial amount from the Super Fund money in my name, paying household bills and Benfield Investment outgoings. In most cases, expenses borne by four of us. I've done nothing but unconditionally support you, both morally and financially, since even before you moved back to Sydney. I've never asked or wanted anything in return. My choice, you haven't been asked to pay for anything since we've been together. No household expenses, motor vehicle expenses, medical expenses, holiday expenses, many personal expenses, and until very recently not even groceries. You've had absolutely no outgoing expenses, within our time together, I've paid for everything. While on the other hand, anything you've earned, has always been yours. I've always insisted that your money was yours. Lump sum Compensation, house sale money, inheritance, cleaning money, car sale money, etc. etc. Any money that you came into, was yours. With up to $300 cash, plus extras per week, coming in from Andrew and Sala since around 2006, with no outgoings. You should have saved more than $100K, from that source alone. Back to us. What do you want to do about us? Besides being secure and having your life paid for by me and to a lesser extent, Sala, what are your expectations for our/your future? I want to enjoy the rest of my life. I want to turn the clock back, go out wining dining, movies, shows, cruises, car trips, bike trips, ski trips, dive trips, etc. I want to do these things sooner than later, and I'd like to do them with a romantic female partner, or partners. I still have feelings for the Christine I used to know and trust and as the devil I know, you're still my first choice of romantic partner. If what we had for so long is not what you want, please move on, so I can get on with my life. If you choose to move on, I sincerely hope that you'll have a happier, more comfortable, and fulfilling existence within your other world, The Pollock Women's Club, being Christine, Sarah, Tina, Billy and the very generous and probably soon to be much wealthier, Sala. Over to you!"

The deceased

1. Before going to the evidence of the witnesses, it is important to try to gain an understanding of who the deceased as a person. Inevitably, in a case against a deceased's estate, an important witness cannot give evidence. That person's character, knowledge and intentions, have to be discerned from the evidence of others.
2. In this case, the nature, and character, of the deceased was revealed during the hearing by descriptions of him given by a number of the witnesses. The evidence was, broadly speaking, consistent.
3. The deceased was described as a generous and caring man, who was a good listener, particularly in relation to his family and friends: Tcpt, 8 June 2022, 109(35-42); Tcpt, 9 June 2022, 211(38-45); 240(33-34), 251(42-48). He was also described as "matter of fact", yet "very direct". He often spoke his mind, which sometimes came across as "stirring" or "antagonising": Tcpt, 8 June 2022, 107(7-8), 109(23-24), 163(47-49); Tcpt, 9 June 2022, 243(39)-244(4), 251(42-48).
4. He was also described as a person with strong views, who stood up for his position, adopting on occasion a "my way or the highway" attitude: Tcpt, 8 June 2022, 164(1-9), 166(3-4); Tcpt, 9 June 2022, 211(28-33), 241(4-8). He often said "blokes don't change": Affidavit, Christine Pollock, 9 July 2021 at par 113, Tcpt, 7 June 2022, p 57(41-46), p 65(42-44).
5. Yet, the deceased's sister Lyn, stated that his decision-making was not impulsive, but well thought through, often consulting others in important decisions: Tcpt, 9 June 2022, 212(7-20).
6. Some of the witnesses admitted that, at times, the deceased liked to be in control, and, as a result, was, sometimes, selfish and demanding, which could make him difficult to live with: Tcpt, 8 June 2022, 139(26-30), 142(1-12); Tcpt, 9 June 2022, 211(35-36), 251(42-48), 240(39)-241(8). He was also said to be one who took control of his own life, wanting to make sure that he was the master of his own fate: Tcpt, 9 June 2022, p 241(4-15).
7. From the various descriptions given of him, I am not persuaded that the deceased would not have taken steps, unambiguously and unconditionally, to act upon a determination to separate, and, thereby, end the de facto relationship, if that is what he wished to do. The descriptions of him make it difficult to comprehend him taking no concrete steps to end the relationship, by, for example, firmly telling the Plaintiff to vacate the Glenorie property, if, as is asserted by the Defendant, the de facto relationship that had existed, had come to an end.

The Plaintiff's evidence

1. Whilst all the circumstances must be considered, the most important witness, it seems to me, who could give evidence, in this case, about the existence of the relationship, is the Plaintiff. She gave evidence about the whole of the relationship, including what she and the deceased was each doing and saying. Overall, whilst I found the Plaintiff to be far from loquacious, answering most of the questions monosyllabically, I tend to the view that she was endeavouring to tell the truth. I found her to be an honest, sincere and reliable witness.
2. The cross-examination, which was necessary, and which covered a range of elements of the relationship, in parts, would have been extremely painful for her, as it involved the conduct of the deceased, about some of which conduct the Plaintiff said she knew nothing at the time it had occurred. She remained calm, and courteous, to senior counsel for the Defendant, and I believe that she did her best to answer the questions asked of her. Indeed, she made concessions when necessary and answered questions in a straightforward and clear way.
3. In my view, whilst the Plaintiff clearly has a personal interest in the outcome of these proceedings, her evidence more closely accords with the objective chronology of events.
4. I tend to the view, accepting her evidence, that between about 2013 and 2017, the relationship was difficult for the Plaintiff and for the deceased. I am satisfied that they navigated the difficult time, each in her, and his, own way, and, thereafter, the relationship improved, although it might not have been as it was, particularly in the period 2009 to 2012.
5. Yet, it is, perhaps, the objective elements, in, and after, 2017, about which she gave evidence, and which were not the subject of real challenge, that give the real colour and significance to the relationship in the years before the deceased's death and enables the Court to determine the nature of their relationship at the time of his death.
6. The Plaintiff swore three affidavits, the first of which, sworn on 9 July 2021, comprised 220 paragraphs, spanning 33 pages; the second, which was sworn on 27 April 2022, comprised 23 paragraphs, spanning 6 pages; and the third, in reply, which was sworn on 27 September 2021 comprised 43 paragraphs, spanning 7 pages.
7. As has already been stated, it was not disputed that a romantic relationship started in about 2002, that the Plaintiff moved into the Glenorie property, with the deceased in 2009, and that they were in a de facto relationship, at least until 2012 or 2013.

Bettina's evidence

1. Bettina affirmed one affidavit in these proceedings, dated 27 September 2021, which comprised 30 paragraphs, spanning 5 pages. The deceased was her godfather: Affidavit, Bettina Pollock, 27 September 2021 at pars 3-5.
2. I accept that Bettina would wish to support the claim made by the Plaintiff. However, I formed a favourable impression of her veracity and did not have any sense, whilst she was giving her evidence that it was being tailored to support the Plaintiff's case. I accept her as a witness of truth.
3. Following the separation with her partner, Ben, in September 2014, Bettina moved in with the deceased and the Plaintiff at the Glenorie property for a period of about nine months. During this time, she observed that they were having some difficulties in their relationship and that there was occasional tension between them, but that overall, she observed a "happy and loving relationship". She also noted that the Plaintiff would do most of the domestic duties and cared for the injuries suffered by the deceased: Affidavit, Bettina Pollock, 27 September 2021 at pars 14-17.
4. Bettina gave evidence that the deceased cared for her son, Billy, like his own grandson: Affidavit, Bettina Pollock, 27 September 2021 at pars 28-29, Tcpt, 8 June 2022, p 107(30-41). This was not the subject of any challenge.
5. In cross-examination, Bettina elaborated that between 2015-2017, the deceased "wasn't very happy because [the Plaintiff] stopped doing a few things that he liked her doing" and that there was "tensions and bickering": Tcpt, 8 June 2022, p 106(41-48), 111(22-39). She said that there was "maybe some stirring" by the deceased.
6. She also stated that the Plaintiff had told her in 2015 that she had been to see a lawyer, who had then written a letter to the deceased seeking payment of an amount of money. She said she had actually seen the letter, but did not have a copy. However, she said that although the Plaintiff was seeking a payment from the deceased, the Plaintiff had not told her that the relationship with the deceased was over, although agreed that she had said words to the effect of "I'm done with him. I'm telling him to pay me out and I'm going": Tcpt, 8 June 2022, p 110(21)-111(9).
7. Bettina did not discuss the nature of the problems between the deceased and the Plaintiff with him.

Sarah's evidence

1. I accept that Sarah, also, would wish to support the claim made by the Plaintiff. However, I formed a favourable impression of her veracity and did not have any sense, whilst she was giving her evidence that it was being tailored to support the Plaintiff's case. I accept her as a witness of truth.
2. Sarah affirmed one affidavit in these proceedings, dated 27 September 2021, which comprised 31 paragraphs, spanning 5 pages.
3. She would visit the deceased and the Plaintiff several times a month, and said she observed that the Plaintiff and the deceased had "a close and loving relationship" and that the deceased liked to spoil the Plaintiff. In cross-examination, she described their relationship in the first few years as: "There was lots of weekends - or almost every weekend away, from what I would recall, on motorbike trips or holidays, cruises. They always had something going on, and a lot of social events, and lived a very happy life together".
4. She said that the deceased had cared for, and assisted, her, as if she was his own daughter (although she admitted that the deceased would sometimes give her a hard time). She annexed to her affidavit, screenshots of text messages that she had sent to the deceased in September 2020, which wished him a "Happy Father's Day".
5. However, Sarah acknowledged that the deceased and the Plaintiff had some difficulties in their relationship in 2014, which she believed was due to the Plaintiff's decision not to go on rides with him on his motorcycle. In cross-examination, Sarah said that she first became aware of this issue in the relationship at the end of 2012, when the deceased made comments about the Plaintiff's decision to not go riding with him.
6. She later claimed that she also believed that the difficulties between the Plaintiff and the deceased were caused by the amount of attention that the Plaintiff was devoting to Sarah's health problems and also to Bettina and Billy. This had resulted in the Plaintiff having less time for the deceased. (This evidence was corroborated by the contents of the letter that the deceased had handed to the Plaintiff to which reference has been made.)
7. Sarah also recalled a conversation in late 2014, or early 2015, in which the Plaintiff had told her that she was upset because the deceased was going on a date with another woman.

Steven Smith's evidence

1. Mr Smith made one affidavit in these proceedings affirmed on 23 September 2021, which comprised 16 paragraphs, spanning 4 pages. He was a witness who had no interest in the result of the proceedings.
2. Mr Smith had known the Plaintiff and the deceased for approximately 20 years, and had first met them at the Glenorie Motorcycle Group. He gave evidence that he would see them, most often, at the Glenorie RSL Club, on a Thursday night, when they would attend the meetings of the Club: Tcpt, 8 June 2022, p 124(1-6).
3. He said that the Plaintiff and the deceased "always presented themselves as a couple" around the motorcycle group and at the RSL Club, and that they provided each other with emotional, and physical, care and support. He noted that they "were not prone to public displays of affection".
4. In cross-examination, Mr Smith said that to him, the deceased and the Plaintiff were "partners": Tcpt, 8 June 2022, p 124(4). He only observed a change in their relationship when the Plaintiff stopped accompanying the deceased on motorcycle rides. He added there were occasions, after 2017, in addition to motorcycle rides, when the deceased would socialise without the Plaintiff. However, he said that broadly he did not observe changes in the way that the deceased socialised with the Plaintiff. He maintained that the Plaintiff still attended most of the weekly bike club meetings with the deceased.
5. Mr Smith stated that, in 2018, he would visit the deceased, weekly, in hospital after the accident, recalling that the Plaintiff was always present when he visited. He also remembered that the deceased would get the Plaintiff to assist with showering him and would not let the nurses shower him.
6. Even though in cross-examination, he agreed that he would see the deceased only every couple of months, there was really no challenge to the Plaintiff's evidence on this topic.
7. Mr Smith said that the deceased had never discussed his relationship with the Plaintiff with him.
8. There is no reason to not accept the evidence of Mr Smith. He was clearly giving evidence, most of which was really not the subject of any real contest, and which was truthful.

Judith Lloyd's evidence

1. Judith Lloyd swore one affidavit, dated 27 September 2021, which comprised 12 paragraphs, spanning 3 pages. She was a witness who had no interest in the result of the proceedings.
2. She was a close friend of the Plaintiff, had known the Plaintiff and the deceased, for over 20 years, and had lived not far from the Glenorie property. She, too, was a member of the Glenorie RSL Touring Club, with them, for over 10 years.
3. Ms Lloyd observed that the Plaintiff and deceased "in a loving and caring relationship" and had a "mutual co-dependency". She elaborated, in cross-examination, that they were a team and would prepare meals for each other when the other went to work. She stated she did not observe any changes or difficulties at any point in their relationship from 2013 until the deceased's death: Tcpt, 8 June 2022, p 135(34-40), p 141(35-49).
4. However, she acknowledged, in cross-examination, that the Plaintiff had told her that she was thinking about consulting lawyers about family law problems and that she was "thinking of" leaving the deceased. She did not know whether the Plaintiff had actually gone to see lawyers or whether the lawyers had written to the deceased.
5. She also remembered the Plaintiff telling her, sometime in 2015 or 2016, after the conversation about lawyers, about her concerns with the deceased going out on a date or motorcycle ride with another woman. She recalled that they had two, or three, conversations of a similar nature and that the Plaintiff discussed two women in particular. She believed these conversations stopped after the deceased had his accident in 2018.
6. She stated that after each of his motorcycle accidents, the Plaintiff would provide significant medical attention, and care, to the deceased, even when he was in hospital. She recalled the deceased saying to her "I really appreciate Christine and what she does for me, I couldn't do it without her". She recalled that whenever the deceased went in for surgery, the Plaintiff would be there, that she gave him a kiss as he was taken to, and also when he came back from, surgery.
7. The week before the deceased died, Ms Lloyd recalled the deceased saying that the Plaintiff had looked after him "like a prince": Tcpt, 8 June 2022, 136(48)-137(1), 137(15-17).
8. There is no reason to not accept the evidence of Ms Lloyd. It was clear that she was giving truthful, and sincere, evidence, most of which was really not the subject of any real contest.

Anne Marie Bronwen's evidence

1. Anne Marie Bronwen, gave evidence in one affidavit, made on 27 September 2021 which comprised 9 paragraphs, spanning 3 pages and she, too, was cross-examined. She was a witness who had no interest in the result of the proceedings.
2. Mr and Mrs Bronwen lived in the same street as did the deceased and the Plaintiff. They both agreed that the Plaintiff first moved into the Glenorie property in 2009. She wrote that since 2003, the Plaintiff and the deceased had been in a "close and affectionate relationship".
3. In cross-examination, she affirmed that, even after 2018, she had observed them to be affectionate, and caring, to one another. She explained that this was displayed in the way they looked at each other, through how they spoke to each other, and with the use of compliments made by one to the other: Tcpt, 8 June 2022, p 132(25-30), p 132(41)-133(42).
4. Ms Bronwen gave evidence that the Plaintiff would visit the deceased in hospital every day, following his motorcycle accidents.
5. In cross-examination she admitted that the Plaintiff did not discuss the "bad patches" of her relationship with the deceased with her, and neither did the deceased: Tcpt, 8 June 2022, p 131(40)-132(19). She also said that the Plaintiff did not really spend time at Bettina's house but would only do so "maybe for a night" to look after Billy, in which case she would feed the dog.
6. There is no reason to not accept the evidence of Mrs Bronwen. It was clear that she was giving truthful evidence, most of which was really not the subject of any real contest. Her evidence was corroborated by the evidence of her husband.

John Thomas Bronwen's evidence

1. John Bronwen also affirmed an affidavit in these proceedings, on 27 September 2021 which comprised 11 paragraphs, spanning 3 pages. He was not cross-examined on his evidence. Presumably, this was in order to save time. Like his wife, he was a witness who had no interest in the result of the proceedings.
2. Mr Bronwen attested that he had observed the Plaintiff and the deceased attend a variety of events together including, ANZAC Day memorials, dinners at the Glenorie RSL Club, Glenorie Motorcycle Club events, shopping, and weekend bike trips. He stated that he observed "both of them to appear happy and content" and "to be loving and caring towards each other": Affidavit, John Bronwen, 27 September 2021 at pars 7-8, 11.
3. Mr Bronwen remembered that the Plaintiff would spend almost every day at the hospital because she often asked him and his wife to feed the dog whilst she was away from the Glenorie property.
4. There is no reason to not accept the evidence of Mr Bronwen. Most of his evidence was really not the subject of any real contest.

Brian John Ellis' evidence

1. Brian John Ellis, swore one affidavit, sworn 24 September 2021, which comprised 11 paragraphs, spanning 3 pages. He was a witness who had no interest in the result of the proceedings.
2. Mr Ellis met the deceased and the Plaintiff through the Glenorie RSL Touring Club in 2014. He said he would see them regularly at Club meetings, Club social functions, and for dinners at the Glenorie RSL Club. In cross-examination, Mr Ellis added that even though the Plaintiff did not ride with the deceased, on occasions, she would come by car, and stay with the deceased on their weekend bike trips. He said that she continued to attend the weekly club meetings and host Christmas parties for the Club, with the deceased: Tcpt, 8 June 2022, p 128(38-45).
3. (Bearing in mind the date of the first meeting, his evidence corroborates the Plaintiff's evidence that she and the deceased continued to socialise together, even after 2014.)
4. Mr Ellis attested that, following the deceased's accident in 2018, during eight of the twelve visits he had made to the deceased in hospital, the Plaintiff was also present.
5. Mr Ellis observed that the Plaintiff and the deceased were in "a happy, caring, and loving relationship" and that the deceased was very fond of the Plaintiff's grandson.
6. In cross-examination, Mr Ellis said that neither the deceased nor the Plaintiff discussed their relationship with him.
7. I accept the evidence of Mr Ellis. His evidence accords with much of the other evidence and was corroborated by the evidence of his wife.

Elizabeth Morag Ellis' Evidence

1. Elizabeth Morag Ellis swore one affidavit on 24 September 2021, which comprised 6 paragraphs, spanning 3 pages. She was not cross-examined on her evidence. Presumably, this was in order to save time.
2. Mrs Ellis met the deceased and the Plaintiff through the Glenorie RSL Touring Club in 2014. She recalled that for as long as she had known them, they had been living together and were a couple. She stated that they "spoke of a happy homelife together" and that the deceased was very fond of the Plaintiff's grandson. She observed that the Plaintiff "devoted her time to caring and supporting" the deceased and "went above and beyond to make sure all his needs were being met": Affidavit, Elizabeth Morag Ellis, 24 September 2021 at par 6.
3. Mrs Ellis gave evidence that during four of the six times she had visited the deceased in hospital, the Plaintiff was also present.
4. I accept the evidence of Mrs Ellis.
5. I next turn to the evidence of the Defendant's witnesses.
6. Even though each of the Defendant's witnesses may have been repeating what the deceased had said to him, or to her, I found that overall, the evidence, particularly each of the children of the deceased, seemed to exhibit a sense of grievance in the Plaintiff having brought this claim. In my view, this tended to colour the evidence given.
7. There are also aspects of his, and her, evidence that I do not accept, where it conflicts with the evidence of the Plaintiff and the witnesses called in her case.
8. I also tend to the view that some of the conversations with the deceased occurred during the period 2015 and 2017, when there were difficulties in the relationship of the deceased and the Plaintiff.

Dean's evidence

1. Dean swore three affidavits in these proceedings, the first on 2 September 2021, which comprised 68 paragraphs, spanning 8 pages; the second, on 5 November 2021, which comprised 21 paragraphs, spanning 3 pages; and the third, sworn on 23 May 2022, which comprised 18 paragraphs, spanning 4 pages.
2. Dean denied that the Plaintiff and the deceased were in a de facto relationship. He recalled several conversations between 2014 and the deceased's death in 2020, in which the deceased had said "Christine and I aren't together anymore", "we haven't been intimate since at least 2008", and "we are done". In cross-examination, Dean maintained that deceased made those statements and did not accept that the statements were inconsistent with the Plaintiff moving in with the deceased in 2009.
3. In re-examination, Dean said he believed the relationship had begun to change in early 2012, as he had observed raised voices, with the deceased becoming upset and yelling at the Plaintiff, and with objects sometimes being thrown. He believed that this continued for a period of two or three years. He recounted a specific argument at Christmas in 2014, in which the deceased and the Plaintiff argued about giving the dog a ham bone. (Both Lyn and Helen, also gave evidence of this argument, although they stated that it occurred at Christmas in 2013. They accepted that the Plaintiff had been feeling some stress and strain due to Bettina's difficult pregnancy and the upcoming birth of Billy during this time.)
4. In answer to questions from the Bench, Dean said that he would characterise the relationship during that period as hostile, and not close or loving: Tcpt, 8 June 2022, p 191(1-16).
5. Dean then claimed that the relationship changed again after that period and that the deceased and the Plaintiff "[p]retty much stopped talking to each other and became quite distant". However, he then claimed that the relationship shifted again some years later, in around 2017 or 2018: "It seemed as though they had (…) come to an agreement or an arrangement that, where they were both to benefit mutually from maintaining a friendship. (…) they were cordial to each other but not what I would say as close or intimate (…) in the sort of way that I'd expect like a couple, a spouse (…) to behave."
6. In one conversation, Dean asked the deceased why the Plaintiff was still living with him if they were not together. The deceased replied: "She insists on staying here and I can't get her to leave": Affidavit, Dean Benfield, 2 September 2021 at par 6.

Trent's evidence

1. Trent swore three affidavits in these proceedings, the first was sworn on 3 September 2021, which comprised 60 paragraphs, spanning 7 pages; the second was sworn on 9 November 2021, which comprised 26 paragraphs, spanning 4 pages; and the third was sworn on 23 May 2022 comprised 22 paragraphs, spanning 3 pages.
2. Trent also denied that the Plaintiff was in a de facto relationship with the deceased, describing the Plaintiff as the deceased's cleaner, carer and friend: Tcpt, 9 June 2022, p 233(2-5), 235(35-40). Perhaps, these are roles she performed, but that description, in my view, is not an accurate representation of the entirety of their relationship.
3. The nature of Trent's evidence causes me to have some concern about the veracity of some of his evidence, although, in fairness to him, it may be based on what he was told rather than what he observed. Although I do not suggest that he was seeking to deliberately mislead the court through the giving of false evidence, I consider that his evidence was affected, significantly, being refracted through the prism of his own perception of the relationship, which was somewhat distant, rather than the true nature of the relationship.
4. In cross-examination, Trent indicated that he moved to Victoria in 2010, and that following his relocation, the deceased would visit him in Victoria approximately six times throughout the year, but otherwise their contact was mostly by telephone. He stated that whenever the deceased visited him, he would always come alone. He agreed that he did not come to Sydney as often: Tcpt, 9 June 2022, p 224(31)-225(28).
5. In 2013, Trent stated that the deceased told him that the Plaintiff was never at home, and only spent a few nights a week at the Glenorie property, and that she was spending most of her time with her daughter, Bettina and her baby. The fact asserted in the statement, too, is inconsistent with other evidence given in the case.
6. Trent deposed that he had several conversations with the deceased, during this period, where he suggested that their relationship was over. For example, he alleged the deceased said: "She just isn't interested in what I like doing. She doesn't like skiing or scuba diving and since the accident she doesn't want anything to do with the bikes. We don't have much in common. We don't sleep in the same bed anymore since the accident. I sleep downstairs in my reclining water chair. She sleeps upstairs in my old bedroom."

Wayne's evidence

1. Wayne swore three affidavits in these proceedings, the first, 3 September 2021 comprised 34 paragraphs, spanning 5 pages, the second, sworn 5 November 2021 comprised 15 paragraphs, spanning 3 pages, and the third sworn 26 May 2022 comprised 22 paragraphs, spanning 4 pages.
2. Wayne denied that the Plaintiff was in a de facto relationship with the deceased, although in cross-examination, agreed that from 2009 to 2013, the deceased and the Plaintiff would eat meals and cook together and watch television together. However, from his perspective they "seemed quite distant" and it did not appear that there was a close relationship between them because "there was two separate (…) living arrangements going on in the household": Tcpt, 9 June 2022, p 239(21-30).
3. This evidence is inconsistent with all of the other evidence in the proceedings, at least in the period from 2009 to 2012, and I do not accept his evidence.
4. Wayne stated that the deceased never discussed with him his feelings about the Plaintiff refusing to ride with him.
5. In the following period, from 2013 to 2016, Wayne claimed that when he would visit the deceased, the deceased and the Plaintiff would rarely be in the same room as each other. In cross-examination, Wayne elaborated that the way the deceased and the Plaintiff spoke to each other in this period remained consistent, and the only real change was that the Plaintiff was not at the Glenorie property as frequently because she was visiting her grandson, Billy.
6. Wayne agreed however, that the deceased was very fond of Billy and cared for the Plaintiff's daughters: Tcpt, 9 July 2022, p 241(17-46).
7. Wayne recalled that he had several conversations with the Plaintiff between 2013 to 2018, where the Plaintiff told him the only reason she was still there was because of the dog and that she did not like the deceased.
8. Wayne stated that Trent informed him that the Plaintiff had given a letter to the deceased and "tried to get $1 million out of him". Although he could not recall the exact time, Wayne remembers that he had a conversation with the deceased where he raised the letter given by the Plaintiff. The deceased replied: "Yeah don't worry about that. It's nothing I can't handle": Affidavit, Wayne Mark Benfield, 3 September 2021 at pars 17-18.

Mimi Therese Stoffels' evidence

1. Mimi Therese Stoffels ("Mimi") swore one affidavit in these proceedings, sworn 3 September 2021 comprised 12 paragraphs, spanning 3 pages. She is the daughter-in-law of the deceased, and is Trent's wife.
2. Mimi claimed that between 2002 and 2014, the Plaintiff would complain to her about the deceased saying words to the following effect: "Geoff is not the man I believed him to be, he is horrible. I've made a big mistake". She maintained that these conversations occurred during cross-examination. At least in the period before 2013, this evidence is inconsistent with all of the other evidence in the case. The duration of the period, which includes the years 2002, when the deceased's relationship with the Plaintiff was said to have commenced (in a romantic way), and 2009, when the deceased asked her to move into the Glenorie property, in addition to the evidence of the witnesses of the close and loving relationship during this period, leads me to doubt the veracity of Mimi's evidence on this topic.
3. Sometime after Christmas Day in 2013, Mimi recalls that she and the family went on a boat trip with the deceased and the Plaintiff. During that trip Mimi stated that she and the Plaintiff had the following conversation: Plaintiff: "I went to see Peter White about what I would be entitled to if I left Geoff but he told Geoff about my appointment. Mimi: "What did Geoff say?" Plaintiff: "He was furious but I am not leaving unless I get $1 million from him." Mimi: "Why so much?" Plaintiff: "My grandson deserves to be raised in the Hills, not out West." Me: "I don't think Geoff has that kind of cash lying around, it would all be tied up in his business accounts."
4. In cross-examination, Mimi maintained that this conversation occurred and that it was a figure of $1,000,000 that the Plaintiff mentioned. However, I accept the Plaintiff's denial of having met with Mr White.
5. (The failure by the Defendant to call Peter White, without explanation, leads me to infer that his evidence would not assist the Defendant's case.)
6. Mimi gave evidence that from 2014 onwards, the Plaintiff would no longer accompany the deceased when he would travel down to visit her and her family: Affidavit, Mimi Stoffels, 3 September 2021 at par 5.
7. Mimi also recalls that sometime in 2017, when the deceased came to visit her home, he complained about the Plaintiff and her daughters living in his house, saying that "She won't fucking leave!": Affidavit, Mimi Stoffels, 3 September 2022, at par 9.

Helen Jean Benfield's evidence

1. Helen Jean Benfield, the wife of Dean Benfield, swore one affidavit on 2 September 2021, which comprised 18 paragraphs, spanning 3 pages.
2. In cross-examination, Helen characterised the relationship between the deceased and the Plaintiff from 2009 and 2013, as "boyfriend and girlfriend" not as de facto partners. It is impossible to accept her evidence on this topic bearing in mind all of the other evidence and the admission made by the Defendant as to the de facto relationship at least until 2012. It is another example of an attempt, by a witness called in the Defendant's case, to play down the relationship that existed between the Plaintiff and the deceased.
3. She agreed they attended "some" family events together, and that they were both at the Glenorie property during family events, but disputed that they jointly hosted those events, or that the Plaintiff would cook at these events: Tcpt, 9 June 2022, p 216(18)-217(29). This evidence, too, is difficult to reconcile with other evidence of witnesses called in the Defendant's case.
4. Helen deposed that the Plaintiff rang her on the telephone and that during that call, the following conversation occurred: Plaintiff: "Geoff put some money away for me in his superannuation fund, about $300,000 but now he wants it back." Helen: "What for?" Plaintiff: "He wants to buy a property at North Arm Cove and wants the money in the super fund to buy it. I said to him "What if I don't want to go" and he just told me "Well then I'll go my way, you go yours." Plaintiff: "I refuse to sign over the super to him. I think I deserve something." Helen: "Well Christine if you are unhappy with the relationship, maybe this is for the best?" Plaintiff: "I am seeking legal advice about what I can do."
5. In cross-examination, Helen stated that she remembered the conversation because it occurred on her son's birthday. (The Plaintiff agreed that she had a conversation with Helen on the telephone that day, but she could not recall the content of that conversation: Tcpt, 9 June 2022, p 271(15-44).)
6. In cross-examination, Helen agreed that from 2017, when she saw the deceased and the Plaintiff every month, that they outwardly interacted with each other in the way that they always had done.
7. I do not accept Helen's evidence where it conflicts with the evidence of the Plaintiff, or the other witnesses called in her case.

Beverley Dawn Benfield's evidence

1. Beverley Dawn Benfield ("Beverley"), the former wife of the deceased and the mother of Dean, Trent and Wayne swore one affidavit in these proceedings, sworn 23 August 2021, which comprised 17 paragraphs, spanning 3 pages.
2. Following their separation, Beverley would still see the deceased at family birthdays and at Christmas. She recalled that "more often than not" the Plaintiff would be absent from these celebrations, which is inconsistent with some of the other evidence. She remained adamant on this point upon cross-examination.
3. In 2014, Beverley recalls having a conversation in which the Plaintiff said: "I really want to leave Geoff, but I have nowhere to go, can I come and stay with you?": Affidavit, Beverley Dawn Benfield, 23 August 2021 at par 11.
4. When cross-examined on this conversation, Beverley could not explain why the Plaintiff had asked to stay with her, given she had other accommodation available. She maintained however, that the conversation did occur.
5. The Plaintiff could not recall this conversation: Tcpt, 9 June 2022, p 270(12-14).
6. Beverley remembers that on Christmas Day in 2016, she had a conversation with the deceased to the following effect: Deceased: "I've started seeing someone. She has faced a lot of struggles and I admire how she has handled it but I'm worried she might have too much baggage for me to handle." Beverley: "We all have baggage. If you have feelings for her, you should give it a chance."
7. She understood this conversation to indicate that the deceased no longer considered himself to be in a relationship with the Plaintiff: Affidavit, Beverley Dawn Benfield, 23 August 2021 at par 8.

Lyn Condon's evidence

1. Lyn Condon ("Lyn") swore one affidavit in these proceedings, sworn 2 September 2021 comprised 33 paragraphs, spanning 5 pages. She is the sister of the deceased. She, too, has no interest in the result of the proceedings.
2. Lyn denied that the Plaintiff was in a de facto relationship with the deceased after 2012. She recalled that the deceased regularly told her that his close personal relationship with the Plaintiff ended after the Christmas/New Year period in 2012. She was also aware that the Plaintiff's decision not to ride with the deceased was a source of tension between them.
3. In cross-examination, Lyn denied that the relationship between the Plaintiff and the deceased improved after 2016. However, somewhat inconsistently, she agreed that after 2016, the deceased and the Plaintiff continued to host, and attend, family events together, that they socialised together, and went out to dinner together. She maintained however, that it was less regular than it had been previously, and that from 2016, the deceased would generally visit her and her husband, Steve, without the Plaintiff.
4. In re-examination, Lyn elaborated that she thought there was a decline in their relationship, that they were less close, because she observed that they did not hold hands or have any "intimate relationship as far as body language". She described the relationship as "strained" and that the deceased held a grudge against the Plaintiff: Tcpt, 9 June 2022, p 211(5-10), 212(32-33).
5. Lyn also recalled that in 2016, the deceased asked her and her husband to accompany her to inspect a property he was intending to purchase in the Central Coast region. The deceased told her that he was wanting to move without the Plaintiff because: "There is no relationship there anymore. She is only helping with the cleaning and I can't see any other way to get her to move out": Affidavit, Lyn Condon, 2 September 2021 at pars 4-6.
6. The Plaintiff had given evidence that the deceased had spoken to her about moving up to the North Coast, together. Again, bearing in mind the nature and character of the deceased, it is implausible to conclude that had he wanted to, he would not have been able to have the Plaintiff vacate the Glenorie property.
7. In 2020, after Lyn and her husband updated their wills, she remembers having a discussion with the deceased by telephone to the following effect: Lyn: "Steve and I have just updated our Wills. I hope you have yours in order as it could cause a lot of trouble with Christine if you don't." Deceased: "Yes, I do, but it was done back in 1991." Lyn: "1991? You need to update that very soon. Are you sure you haven't done one later than that?" Deceased: "No, that was the last one." Lyn: "When are you going to get your new one done?" Deceased: "Soon, probably in the next couple of weeks." Lyn: "What are your intentions about Christine in your Will?" Deceased: "I'm leaving her $100,000. We haven't been together in over 7 years." Lyn: "But she has looked after you and also after your accidents. Do you think that is enough?" Deceased: "Well she has really only been a housekeeper and helped me after accidents. I've always paid for everything including food and holidays so I think $100,000 is enough given we haven't been together for so long."

Melita Sutton's evidence

1. Melita Lucy Sutton ("Melita") swore one affidavit in these proceedings, sworn 1 September 2021, which comprised 17 paragraphs, spanning 4 pages. She has no interest in the result of the proceedings.
2. Melita first met the deceased in 1996, at which time they commenced a relationship, which subsequently ended on 17 December 2000.
3. After their relationship had ended, the deceased kept in contact with Melita through telephone conversations, texts, emails, cards, and the occasional lunch: Affidavit, Melita Sutton, 1 September 2021 at par 6. In cross-examination Melita agreed that there was no romantic relationship her and the deceased between 2001 and 2014.
4. In 2015, the deceased visited her at her house in Umina Beach, at which time Melita claims they had the following conversation: Deceased: "I haven't been with Christine for a couple of years." Melita: "But is she still living with you" Deceased: "Yes but we don't share a room and we aren't a couple." Melita: "I hope you aren't just saying these things to be with me." Deceased: "How many bloody times to I have to say that Christine and I aren't a fucking couple anymore!"
5. Following this conversation, Melita stated she was open to seeing the deceased again on an intimate basis. In cross-examination, Melita added that the deceased had told her that his relationship with the Plaintiff, had ended in 2013: Tcpt, 8 June 2022, p 154(25-27).
6. Melita recalled that on a number of occasions she had conversations with the deceased to the following effect: Melita: "Just to be honest with me, you are telling me that you and Christine are definitely not a couple. Deceased: "Christine and I are not together. She just does the housework for me. I'm the bloody master and she is my fucking servant That gold digger is not my wife, not my fucking de-facto wife, how much plainer do I have to be?"
7. In cross-examination, Melita stated that she did believe the deceased that his relationship with the Plaintiff had ended, but explained that they had multiple conversations on this topic, because the deceased wanted her to stay at Glenorie with him, but she refused because the Plaintiff, as a previous partner of the deceased, was still living there "as a housekeeper", and the deceased could not understand why she was upset about that.

The Plaintiff's situation in life

1. The Plaintiff is currently employed as a contract cleaner on an ad hoc basis. On average, she works between 15-20 hours each week, but this has been highly variable due to COVID continuing to affect her clients.
2. The Plaintiff denied that she received any cash in hand, although Bettina gave evidence that when her mother helped her with a cleaning job, on occasion she would give her some cash, although stated that other times the client would directly pay Plaintiff: Tcpt, 7 June 2022, p 46(15-30); Tcpt, 8 June 2022, p 105(2-25).
3. The Plaintiff's gross monthly income is $4,465, consisting of $2,000 rental income from the McGrath's Hill property and $2,465 income from her work providing cleaning services: Affidavit, Christine Winifred Pollock, 27 April 2022 at pars 8-9. The Plaintiff's monthly expenditure, which was not the subject of cross-examination, totals almost $4,000.
4. The Plaintiff has been drawing upon her savings to meet her living expenses that are not able to be met from her income.
5. The Plaintiff's assets and liabilities include the McGraths Hill property, a car, and savings of under $6,000.
6. Her liabilities include a debt secured by mortgage on the McGraths Hill property ($262,467) and a debt due to her daughters ($26,000) which represents money she borrowed for the purpose of buying her car.
7. During cross-examination, the Plaintiff accepted that $763,000 represented the purchase price for the McGraths Hill property in 2018, and that the value of the property has likely risen since 2018: Tcpt, 7 June 2022, p 43(44-50).
8. The Plaintiff believed that she may have entitlements under the 'Benfield Investment Staff Superannuation Fund' and the 'Benfield Family Trust', however she is unsure as to the amount of any entitlement. She stated in her affidavit, and maintained in cross-examination, that although the statements from the Superannuation Fund and the Family Trust state that she received several distributions from each, during the period of 2011-2016, she did not actually receive any of these payments.
9. She maintained that the deceased "was always in control of our finances": Affidavit, Christine Winifred Pollock, 27 April 2022 at pars 13-20.
10. The Plaintiff seeks a lump sum provision to enable her to pay off her debts and provide a fund for exigencies of life, which will take into account future medical expenses in relation to her conditions of stress, anxiety, sleep deprivation, asthma and ongoing pain and discomfort from motorcycle accidents. She stated that, at the age of 69 (now almost 71), as she only works part time, is unlikely to obtain further gainful employment, has no superannuation, and a tiny amount of savings, the obligation of the deceased was to make such provision for her.

Dean's situation in life

1. Dean and his wife Helen, operate their own landscaping business in partnership. Helen also sometimes works for Coles.
2. Dean's total income for the financial year ending 2021 was $2,101, and Helen's total income was $24,357. Dean gave evidence that their business has been and continues to be affected by the COVID pandemic: Affidavit, Dean Benfield, 23 May 2022 at pars 6-9.
3. In his updating affidavit, Dean stated that the family's monthly expenditure totals $5,175. He did not explain how the difference between the family income and the expenditure was met, even though their disclosed liabilities, for credit card loans, total only $9,471. It is difficult to accept the evidence when there is an unexplained disparity of expenditure over income.
4. The nature and value of the property of Dean and Helen, are as follows: Asset Value Property at Wyongah (Joint) $ 820,000 2009 Toyota Hilux (Dean) $ 14,000 2005 Toyota Camry Sedan (Helen) $ 2,000 Superannuation (Dean) $ 144,105 Superannuation (Helen) $ 112,737 Monies in Bank Accounts (Joint) $ 30,849 Boat (Dean) $ 8,000 Trailer (Dean) $ 2,000 TOTAL $1,133,691

1. In cross-examination Dean conceded that in the period between his first and his updating affidavit, it was possible that the value of the Wyongah property had increased.
2. Dean may also have an interest in the "Benfield Family Trust". The Trust Deed has been unable to be located.
3. Dean gave evidence of his competing financial need. He indicated that he would like to send his two children to the nearby Grammar school for high school. He also requires a sum to pay for his son's occupational therapy, and to cover the costs of hearing aids for his wife. Dean indicated that both he and his wife will need their cars replaced: Affidavit, Dean Benfield, 5 November 2021 at pars 13-21.
4. In his most recent affidavit, Dean indicated that his house had been partly renovated and that the total estimated costs of completing these renovations would amount to $177,000: Affidavit, Dean Benfield, 23 May 2022 pars 16-17.
5. There is little doubt, bearing in mind the estimated value of the deceased's estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Dean's competing needs.

Trent's situation in life

1. Trent conducts his own plumbing business, but says that he has not had any regular work for the last 25 months. Trent's total income for the financial year ending in 2021 was $24,503. His gross fortnightly income consists of government support payments which total $720. Mimi is a full-time carer for their daughter April.
2. In his updating affidavit, Trent stated that the family's monthly expenditure totals $9,224. He did not explain how the difference between the family income and the expenditure was met, although their disclosed liabilities, for various loans, total $41,283.
3. The nature and value of the property of Trent and Mimi, are as follows: Asset Value Somerville Property (jointly owned) $1,350,000 Toyota DC Ute $ 15,000 Trailer $ 968 Business Plant and Equipment $ 31,471 Savings $ 300 Superannuation $ 303,589 TOTAL $1,701,328

1. Trent may also have an interest in the "Benfield Family Trust".
2. Trent gave evidence of his competing financial circumstances. He indicated that he would require a sum to pay for the ongoing care and therapy for his daughter, April, who has Down Syndrome and low muscle tone. He indicated that he would like to send his other two children to the nearby Grammar school when in high school.
3. Trent indicated that there were renovations and maintenance required to his property, which total $150,000. Additionally, he would like to install a swimming pool, to improve the low muscle tone of his children. Trent indicated that him and his wife would like to purchase new cars, and also a ski boat for the family.
4. There is little doubt, bearing in mind the estimated value of the deceased's estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Trent's competing needs.

Wayne's situation in life

1. Wayne's total income for the financial year ending in 2021 was $24,053, and his wife, Katherene's total income was $136,015. He is a carpenter by trade. He has recently started a new business venture "3B Innovations Pty Ltd" to design and manufacture aluminium windows. However, that business has no assets.
2. In his updating affidavit, Wayne stated that the family's monthly expenditure totals $9,058.
3. The nature and value of the property of Wayne and Katherene, are as follows: Asset Value Toyota Hilux 2009 (Wayne) $ 7,000 MLC Superannuation (Wayne) $ 43,000 Hobie Kayak (Wayne) $ 4,000 Komatsu PC 01 Excavator (Wayne) $ 5,000 Work Trailer (Wayne) $ 5,000 Tools (Wayne) $ 5,000 1 Share in 3B Innovations Limited (Wayne) $ 1 60 Nowack Avenue, Umina Beach NSW (Katherene) $ 900,000 House Contents (Katherene) $ 100,000 Superannuation (Katherene) $ 330,174 Car Collection (Katherene) $ 135,000 TOTAL $1,534,175

1. Somewhat surprisingly, there is no reference to any cash in bank or cash savings.
2. Wayne may also have an interest in the "Benfield Family Trust".
3. Wayne gave evidence of his competing financial need. He indicated that he would require a sum to pay for surgery for his wife and one of his dogs. He indicated that he would like sufficient monies to provide a contingency fund to cover expenses for periods when he is unable to work, due to a previous workplace injury. Finally, Wayne indicated that his diesel car has several issues which will require repairs, the estimated cost of which is $4,000.
4. There is little doubt, bearing in mind the estimated value of the deceased's estate, that even after provision is made for the Plaintiff, there will be sufficient left, to satisfy Wayne's competing needs.

Submissions

1. In his written submissions, counsel for the Plaintiff submitted that the Plaintiff is an eligible person pursuant to s 57(1)(b) of the Act as she was in a de facto relationship with the deceased from 2009 until his death. He submitted that the relationship between the Plaintiff and the deceased fulfilled the definition in s 21C of the Interpretation Act 1987, exhibiting many of the factors listed in s 21C(3).
2. He made reference to the comments of Windeyer J in Hooper v Winton [2002] NSWSC 1071 at [36], and to what I had written in Sadiq v New South Wales Trustee and Guardian [2015] NSWSC 716, to support his submissions that despite the imperfections in their relationship, including that the deceased had a relationship with other women, and the difficulties in their relationship, acknowledged by the Plaintiff, between about 2013 and 2017, during which there was a letter sent threatening family law proceedings, the de facto relationship had continued.
3. Moreover, he submitted that these issues were outweighed by other evidence that suggested the relationship had continued, including, that the Plaintiff continued to care for the deceased during his considerable medical treatments; that they continued to live together; that the deceased had continued to financially support the Plaintiff; that she had continued to support him, and that they had continued to socialise with family and friends.
4. In his closing submissions, counsel made reference to the letter written by the deceased to the Plaintiff, following her disclosure to him that she had seen a solicitor, in which he wrote, "[y]ou are still my first choice of romantic partner". He submitted that even at "the worst time in their relationship" the deceased still considered that he was in a de facto relationship with the Plaintiff.
5. Counsel referred to the evidence of the Plaintiff given in cross-examination, that after she saw the reaction of the deceased to the letter from the solicitors, she regretted her decision and no longer wished to separate from the deceased.
6. Counsel submitted that given her age, and previous training, it was unlikely that the Plaintiff would continue in employment for very long, and would be unlikely to find other work. Moreover, he highlighted that the Plaintiff does not have any superannuation or similar fund to assist her with future medical and other expenses associate with old age.

The Statutory Scheme

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case, about which there was really no dispute.
2. This type of legislation has been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [2] (Gleeson CJ).
3. The key provision is s 59 of the Act. The Court must be satisfied, first, that an applicant is an eligible person within the meaning of s 57(1): s 59(1)(a). In New South Wales, it is a multi-category-based eligibility system. There are six categories of persons by, or on whose behalf, an application may be made.
4. As mentioned above, the Plaintiff submits that she is an eligible person pursuant to s 57(1)(b) of the Act as she was a person with whom the deceased person was living in a de facto relationship at the time of the deceased's death.

De Facto Relationship

1. The task for the Court, in determining whether the Plaintiff was an eligible person under s 57(1)(b) involves a careful and sensitive, consideration of all the evidence of the human relationship that existed between the parties.
2. I discussed the relevant principles in Sadiq v NSW Trustee and Guardian [2015] NSWSC 716. The orders made were the subject of an appeal (which was dismissed). The Court of Appeal did not identify any part of what had been written on the principles as being in error: Sadiq v NSW Trustee and Guardian [2016] NSWCA 62. (An application for special leave to the High Court was dismissed upon the basis that any appeal would not enjoy sufficient prospects of success to warrant a grant of special leave: Sadiq v NSW Trustee and Guardian [2016] HCASL 180.)
3. There is no definition of "de facto relationship" in the Act. However, the expression "de facto relationship" is now common parlance in Australia. As Lindsay J wrote in Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477 at [35]: "The statutory concept of 'a de facto relationship' is not far removed from the common understanding of such a concept in Australian society. The expression 'de facto relationship' evolved, in common parlance, as both a comparison, and a contrast, with the relationship of marriage. A 'de facto relationship' was, in ordinary parlance, a relationship which exhibited the characteristics of mutual commitment familiar in a relationship of marriage, save for the solemnities involved in a formal exchange of wedding vows: Thompson v The Public Trustee of NSW [2010] NSWSC 1137 at [74]. Significantly, however, the current legislation does not, in terms, refer to parties 'living together as husband and wife'; there is nothing that necessarily ties the concept of 'a de facto relationship' to that of a formal marriage."
4. Nor is there a precise test, identified in the Act, for determining whether such a relationship exists. However, the "Note" to s 57(1) provides that "De facto relationship" is defined in s 21C of the Interpretation Act 1987 (NSW).
5. Section 21C of the Interpretation Act, provides: "(1) Meaning of "de facto partner" For the purposes of any Act or instrument, a person is the "de facto partner" of another person (whether of the same sex or a different sex) if: (a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or (b) the person is in a de facto relationship with the other person. (2) Meaning of 'de facto relationship' For the purposes of any Act or instrument, a person is in a 'de facto relationship' with another person if: (a) they have a relationship as a couple living together, and (b) they are not married to one another or related by family. A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else."

Determination of eligibility

1. As stated, the Defendant submitted that whilst there had been a mutual commitment to a shared life for a period of time, that commitment ceased when the deceased went out with another woman, or women, and acted contrary to his commitment to the Plaintiff.
2. I do not accept this submission. The Plaintiff remained living in the Glenorie property, which she regarded as her home, something which the deceased did not seem to dispute, as he took no steps to have her leave. Indeed, there is no direct evidence that he had ever asked her to leave the Glenorie property, although he may have told some people that she would not leave. Furthermore, there was no evidence, that persuades me that whilst she continued to live there, there were two separate households, not one. A couple are not obliged to spend every waking moment together. Each may engage in activities, see people socially, and attend family events separately.
3. The event in 2015, when he told her that he was taking another woman to dinner, unsurprisingly, one might think, was the catalyst that caused her to see a solicitor, but his liaison with the other woman appeared to last only a matter of weeks.
4. I accept the Plaintiff's evidence that she did not spend much time away from the Glenorie property, only occasionally going to the McGraths Hill property to assist Bettina and to be with Billy.
5. There does not seem to be any real dispute that she and the deceased continued to eat meals together and continued to communicate one with the other. They appeared to have socialised together (albeit perhaps not as much as they had done previously). The deceased continued to financially support the Plaintiff, as he had done throughout the earlier years of the relationship. The Plaintiff's two children, and her grandchild, continued to enjoy a close, warm, and loving, relationship with the deceased. Importantly, the Plaintiff continued to look after, and care for, the deceased without the assistance of other family members. I am satisfied that she and the deceased maintained a sexual relationship although with his state of health, after 2018, the nature and intensity of the sexual relationship may have diminished.
6. It is clear that the Plaintiff depended upon the deceased financially, there being no dispute that he paid for most of their joint expenditure. There was some financial independence, there being no evidence of a joint bank account or joint property.

Determination

1. As I have determined the question of eligibility, and because there is no dispute that the Plaintiff's application was made within the time prescribed by the Act, I turn now to the nature of the order to be made in favour of the Plaintiff.
2. I have dealt with the family, or other, relationship between the Plaintiff and the deceased, including the nature and duration of the relationship (which was lengthy); the nature and extent of the deceased's estate and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered (which is large); the financial resources (including earning capacity (which is limited, particularly bearing in mind the nature of the work that she does and her age) and the Plaintiff's financial needs, both present and future, as well as those of each of the deceased's three children, as a beneficiary of the deceased's estate; the Plaintiff's age and physical disabilities; the non-financial contribution made by the Plaintiff to the welfare of the deceased over many years (which was significant); the financial provision made for the Plaintiff by the deceased during his lifetime, or made by the estate in permitting her to remain in occupation of the Glenorie property since the deceased's death (which was generous); that the Plaintiff was being maintained, significantly, by the deceased before his death; that there is no other person liable to support the Plaintiff; the conduct of the deceased; and the testamentary intentions of the deceased, including evidence of statements made by him.
3. I am of the view that the deceased had a significant obligation and responsibility to the Plaintiff as the person with whom he was living in a de facto relationship at the time of his death. In reaching this conclusion, I have considered "the tenor of their relationship and their dealings with each other since its inception": Schneider v Kemeny; Kemeny v Schneider [2021] NSWSC 524 at [251] (Rees J). I have also borne in mind, that the relationship included the difficult period, particularly between about 2015 and 2017. Yet, almost all of the evidence from disinterested witnesses, in that period, confirms the continuation of a shared life.
4. The obligation and responsibility to each of his children as competing claimants on his bounty, even though it does not appear that any of them had been financially dependent upon him for many years before his death has not been disregarded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2022