SCHERINI -v- CONWELL [2018] WASC 172 (13 June 2018)

(a) the persons are different sexes or the same sex; or

(b) either of the persons is legally married to someone else or in another de facto relationship.

(4) A reference in a written law to a de facto partner shall be construed as a reference to a person who lives, or where the context requires, has lived, in a de facto relationship.

(5) The de facto partner of a person (the first person) is the person who lives, or lived, in the de facto relationship with the first person.

1. In H v P [2011] WASCA 78 Murphy JA had this to say about de facto relationships:

Unlike a legal marriage, which is presumed to continue until a party can prove that the marriage has broken down for the purpose of legally dissolving the marriage, in the case of a de facto relationship, it is the party asserting the continuance of the de facto relationship that must positively prove the existence of its defining characteristics, rather than being required to prove the negatives. [58]

1. Before leaving the definition found in the Interpretation Act at least two points can be made. The first is the section appears to place great emphasis on the parties residing together. In subsection (1) there is reference to two persons 'who live together'. In subsection (2)(b) there is a reference to two persons who have 'resided' together. In subsection (2)(c) there is reference to 'the nature and extent' of the common residence. All of that suggests careful attention needs to be paid to the living arrangements of the parties. Second, there is no reference to anything like natural love and affection. The closest the section comes is subsection (2)(i). Perhaps the legislature thought these matters were best left to the poet rather than the parliamentary draftsman.
2. The plaintiff's case was founded on his affidavit sworn 16 September 2016. It is a lengthy document running to 53 pages and 557 paragraphs. In fact the picture that emerges is relatively straightforward, even simple. The plaintiff met Peter in 1996. At the time the plaintiff was 28 years old. The plaintiff now knows that Peter was in his 50's at the time but he would never divulge his age. If asked he would volunteer that he was 'between 40 and death'.
3. Although the plaintiff says it was not a case of love at first sight within two months the relationship had developed into a caring and committed relationship. Peter had a unit in Cleaver Street, West Perth. This unit figured prominently in the relationship between the plaintiff and Peter. Soon after the relationship commenced the plaintiff was spending virtually every weekend at the unit. The plaintiff's evidence, which I accept, is to the effect that he and Peter quickly developed a close and affectionate relationship which persisted until the death of the deceased.
4. During the week the plaintiff lived mainly with his mother. He went to the unit on the weekends and for the occasional night or nights during the week. Whenever he went there Peter was present. The plaintiff never had his own set of keys. He did leave his clothes, shoes or belongings such as toiletries and the like at the unit. The plaintiff never did any shopping nor did he clean the unit. Other than the plaintiff and a friend of Peter's, Antoinette O'Kane (whose evidence I will deal with below) very few people visited the unit. The plaintiff says he and Peter would meet up with friends and family outside the unit. That was in keeping with Peter's very 'private' personality.
5. The plaintiff and Peter had an active sex life which persisted up until the date of death of the deceased.
6. The plaintiff and Peter never intermingled their finances. Peter never asked the plaintiff to pay for anything and when they went out together Peter always paid. This also appears to have been the case when Peter and the plaintiff went out in a group - Peter always paid for everyone. They never had a joint bank account and they never owned any property together. Peter had purchased the unit before he met the plaintiff. The only exception to this complete financial independence appears to have been a limited contribution Peter made to the plaintiff buying a motor vehicle. The extent of this contribution is not clear from the evidence but it did not amount to anything of real significance.
7. At one point the plaintiff did suggest to Peter that the two of them buy a house together. This suggestion was made by the plaintiff to Peter when Peter received an inheritance from his mother's estate. Peter's response was that he was happy with the way things were and was not interested in buying a new house. This determination on Peter's part to maintain an independence from the plaintiff is a significant factor in determining this application.
8. It is clear from the plaintiff's evidence, and I accept, that he and Peter had a close, warm and loving relationship. They talked daily, they regularly went out together and they shared their experiences of life as any loving couple would do. The detail in the plaintiff's affidavit makes it clear he had intimate knowledge of Peter's life experience, his likes and dislikes and his motivations. It can clearly be said there were public aspects to the relationship and neither made any attempt to disguise from anyone their feelings for one another. In fact, Peter developed a warm and loving relationship with the plaintiff's mother.
9. There was never any question of the couple raising children together. Neither was interested. Nor did they have any pets together.
10. The plaintiff was crossexamined on his affidavit and it became apparent there were some inaccuracies in that affidavit. At par 382 402, the plaintiff details the circumstances in which he said he discovered Peter's death. Essentially he says he worked a night shift from 9.00 pm on Friday 11 April 2014 to 7.30 am Saturday 12 April 2014. He says on finishing his shift he collected some clothes from his mother's house and went to the unit. Peter did not answer the door and after contacting a number of hospitals, the plaintiff went back to his mother's place. He says soon after he returned home, Ms O'Kane knocked on his door and told him Peter had passed away. He says that same day Ms O'Kane, his mother and the plaintiff went to the unit to go through Peter's effects. At the unit he met the defendant who is the niece of the deceased. The plaintiff also says on that same day he and the defendant consulted lawyers.
11. It is obvious on the face of the affidavit that this account of events cannot be right. The timeframe makes no sense. Apart from anything else, it suggests the plaintiff and the defendant consulted solicitors on Saturday or perhaps Sunday. That is inherently unlikely.
12. In fact when it was put to the plaintiff in crossexamination, the evidence in his affidavit was incorrect, he readily agreed. In fact after finishing work he had gone home, slept for a period, gone to the apartment and when he was unable to raise Peter, he went home. He went back to the apartment later that day and when he was still unable to raise Peter, he once again went home. It was not until the next day Ms O'Kane informed him of Peter's death. It was some days later when he met the defendant at the unit. They subsequently consulted solicitors.
13. Nothing really turns on these inaccuracies in the plaintiff's evidence. Watching him during crossexamination, I was satisfied the plaintiff was an entirely honest witness who was utterly without guile. In the end, this was not a case where anything turned on credibility. It was simply a matter of determining on the objective evidence whether or not the plaintiff was Peter's de facto partner.
14. Having said that, there was one matter of omission which requires comment. Between May of 2005 and August of 2009, the plaintiff lived in Hopetoun. He moved to Hopetoun to assist a friend Harry Bowditch to run a restaurant. During that time, he appears to have spoken to Peter regularly and to have come up to Perth to stay with Peter at the unit every other weekend. While this separation was significant and should have been included in the affidavit, I am not satisfied its omission was sinister. In any event, during crossexamination, the plaintiff readily admitted he spent five years down south and was physically separated from Peter. But he maintained, and I accept, that there was no diminution in feeling between the couple.
15. It is also of significance to note that there is nothing in the evidence to suggest that either the plaintiff or Peter had an intimate or sexual relationship with any other person during the entire period of their relationship. It is true that from time to time the plaintiff went to Bali with friends and without Peter. Peter told the plaintiff that during his early years he had done enough travelling and he was no longer interested in going anywhere. But there is no suggestion that during these holidays or at any other time Peter and the plaintiff were anything other than faithful to one another.
16. In support of this application, the plaintiff relied on a number of affidavits perhaps most importantly an affidavit of Ms O'Kane sworn 14 December 2016. Ms O'Kane says she met Peter in Sydney in May of 1985. At the time Peter was involved in running a business known as the 'Paddington Deli' in Oxford Street, Paddington, New South Wales. The two gradually became friends and Ms O'Kane says and I accept that Peter told her all about his life and intimate relationships. In 1989 Peter moved to Perth with a partner. In September of 1989, Ms O'Kane moved from Sydney to Perth. She appears to have done so solely for the purpose of being near Peter. Clearly they had a truly remarkable friendship.
17. There is no doubt that Ms O'Kane knew the plaintiff and Peter better than anyone else. She appears to have been privy to Peter's innermost thoughts. When crossexamined she struck me as a highly intelligent, intuitive woman in tune with the world and certainly not easily fooled. Her evidence so far as it consists of observations can be readily accepted. But her views as to whether or not the plaintiff and Peter were in a de facto relationship is not relevant to the determination of this application. That is a matter for the court.
18. The same can be said of two of the other witnesses who filed evidence in support of the plaintiff's application. I have already mentioned Mr Bowditch. As to his evidence I need say nothing more than it is consistent with the plaintiff's evidence. He observed Peter and the plaintiff to be a close loving couple and he confirmed the domestic arrangements. The evidence of the plaintiff's mother Judith Anne Scherini was to a similar effect. Clearly, Peter had a very close relationship with her and she had a great deal of affection for him. Peter was included in many of the family activities arranged by Mrs Scherini. Mrs Scherini was aware of the intimate nature of the relationship between the plaintiff and Peter and she clearly gained much satisfaction from seeing her son in a stable longterm relationship.
19. Turning then to the nonexclusive criteria set out in s 13A(2) of the Interpretation Act, this was clearly a longterm relationship. They were together and faithful to one another for 18 years. They had a sexual relationship which was ongoing, they clearly demonstrated affection for one another in public and friends and family regarded Peter and the plaintiff as a couple. I find as a fact that there was between the two a real mutual love and affection.
20. Against all of that, they never resided together in the true sense. The plaintiff had regular weekend sleep overs at Peter's unit. When the opportunity did arise for the two to purchase a house together Peter specifically declined to take that step. The unit was not big enough to accommodate Peter and the plaintiff as a couple and the thought of living together on a day to day basis was never entertained. Consequently, they maintained separate if intertwined lives.
21. They were both completely financially independent and there was no significant shared financial arrangements. They own no property together and of course they did not have any children.
22. There does appear to have been a commitment to a shared life. As I have indicated they were faithful to one another over many years. Neither looked elsewhere for support. Certainly they had their own circle of friends with the plaintiff perhaps having a wider circle than Peter. They had many shared friends. None of those closely involved with the couple suggest there was any tension in the relationship or that they were not happy together. There is nothing to suggest they would not have gone on living as they had done for 18 years well into the future.
23. In resolving this issue, it is a question of degree and weighing in the balance those factors in favour of finding there was a de facto relationship and the counterveiling factors. In my view there are two matters which in this case tip the balance against there being a de facto relationship. First, the plaintiff and Peter did not actually reside together. In fact Peter appears to have made it plain on any number of occasions to anyone who would listen, he was content living by himself and did not want to enter into a relationship which could be defined as 'marriage like'. Given the emphasis s 13A places on residing together, this is a significant factor. Ultimately, I am not satisfied the nature and extent of the common residence was consistent with a de facto relationship.
24. Second, there is the financial independence of Peter and the plaintiff. There are of course many relationships where the parties decide to keep their financial affairs separate. But here there was no interconnection. They did not shop together or take care of one another's needs. There is no aspect of the financial arrangements between the plaintiff and Peter that suggests the coming together of their respective positions consistent with a marriage like relationship.
25. For these reasons I am satisfied that the plaintiff was not the de facto partner of Peter. I will make orders accordingly.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : SCHERINI -v- CONWELL [2018] WASC 172 (S)

Costs - Application for costs by successful defendant - Turns on own facts

Pritchard & Pritchard [2015] WASC 170(S)

1. On 13 June 2018, I dismissed the plaintiff's claim against the defendant. The plaintiff claimed he was the de facto partner of the late Peter Brooks-Benison. The defendant was the administrator of the deceased's estate. Having dismissed the application, I invited the parties to make submissions as to costs. The defendant filed submissions and an affidavit of Jonathan Eastoe sworn 28 June 2018. Mr Eastoe is the defendant's solicitor. Solicitors for the plaintiff filed their submissions and after considering the affidavit and both sets of submissions, I made an order that there be no order as to costs. The defendant's solicitors sought reasons for that decision. These are those reasons.
2. Turning first to Mr Eastoe's affidavit, he makes a number of points about the evidence relied upon by the plaintiff. He says first, the plaintiff's evidence did not make any reference to the fact he had purchased a property at Success with his mother. Second, the evidence did not disclose the plaintiff had holidays with his mother and one Harry Bowditch in Bali during the time he claimed he was the de facto partner of the deceased. Third, his evidence did not disclose that for a considerable time he resided at Hopetoun with his mother and Harry Bowditch and operated a business with Harry Bowditch. Finally, the evidence did not disclose that the plaintiff had purchased a farm in Hopetoun with Harry Bowditch.
3. Mr Eastoe says having reviewed the evidence, he came to the conclusion the plaintiff's claim could not succeed. On that basis, he made what he refers to as a 'calderbank' offer. That offer was made on 20 January 2017. The defendant offered in a minute of consent order that the plaintiff's claim be dismissed with costs. The offer was not accepted nor was a counteroffer made. On that basis, the defendant sought the costs of the action up to 20 January 2017 and indemnity costs thereafter. A note of the costs is attached to Mr Eastoe's affidavit. The amount sought was $81,465.65. In rough terms, the solicitor's costs were $41,728.15 and counsel's costs were $39,737.50. A trial of the action took two days.
4. In written submissions, the defendant made five separate points. First, the submissions referred to O 66 r 1(1) of the Rules of the Supreme Court 1971(WA) (Rules) which provides that costs are in the discretion of the court. The submissions noted that generally a successful party to any action will recover his costs. So prima facie the defendant was entitled to an order for costs.
5. Second, while it was acknowledged that probate matters are recognised exceptions to the general rule that costs follow the event, it was submitted this was not probate action. Reference was made to O 73 r 1 of the Rules. While this was not a probate action in the strict sense, it was an action concerned with the proper administration of an estate. The plaintiff claimed to be a de facto partner of the deceased. They had a longterm loving relationship - that was acknowledged by all of the witnesses with the exception of the defendant who lived in New South Wales and really did not have an intimate knowledge of the relationship between the deceased and the plaintiff. While ultimately I found the deceased and the plaintiff were not in a de facto relationship, largely because they did not live together, there was no doubt that many of the elements required to satisfy the definition of a de facto relationship were present. I will not repeat what I said in the judgment. The fact remains there was a real issue to be determined.
6. That being so, it is arguable that the defendant, as administrator of the estate, should have sought directions from the court as to the proper administration of the estate. While I accept that Mr Eastoe, an experienced solicitor and doubtless acting bona fide, formed the view there was no de facto relationship, when the plaintiff maintained his position, it would have been prudent to seek directions. If that had been done, the plaintiff would have been joined as a party to the action and the proceedings would have played out in precisely the same way as in fact occurred. That would have been a probate proceeding and costs would have been dealt with accordingly.
7. The third point made in the defendant's submissions referred to the decision in Pritchard & Pritchard [2015] WASC 170(S) and it was said there were no relevant similarities between this matter and a probate action. It is true that in the Pritchard case, there was a will. In this case, the deceased died intestate. But that difference is of no moment. The fact is there was a need to determine whether or not the plaintiff was the deceased's de facto partner. The answer to that question determined how the deceased's estate was distributed.
8. The fourth point made by the submissions was to the effect that the two exceptions referred to in Pritchard were not relevant in this case. Those two exceptions are situations where the litigation has been brought about through the conduct of the testator or where a party to litigation has reasonably felt it desirable to enquire into the testamentary disposition of a testator. Contrary to submissions made on behalf of the defendant, I am satisfied both of those exceptions applied in this case. This litigation was a consequence of the deceased not having made a will. I appreciate that is a different consideration to what was referred to in Pritchard. It may in fact be an extension of that first exception. It remains the fact that had the deceased made a will, the status of the plaintiff would probably not have been raised. If he had been excluded from the will, he may have taken action under the Family Provision Act 1972 (WA). That is a different question. Here, this litigation was a direct consequence of the deceased not having a will.
9. Clearly, the plaintiff felt it desirable to enquire as to whether at law he was the deceased's de facto partner. Given the nature of the relationship, that was not an unreasonable position. The relationship was central to the original decision and I will say no more on that issue other than to restate that the plaintiff's position was reasonable.
10. Finally, there is the calderbank offer. While I would accept that as a general rule, a calderbank offer is a trigger to an indemnity costs order, that is not always the case. The issue of costs remains a matter of discretion. As I have indicated above, the issue in this case was the status of the plaintiff - was he or was he not a de facto partner of the deceased? As administrator of the estate, the defendant was required to resolve that issue. Although this was an inter partes application, it might very well have been as I have indicated above, a summons for advice. That being so, the existence of the calderbank offer is not, in my view, sufficient to trigger an order for costs let alone indemnity costs.
11. For these reasons I ordered that there be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.