Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 | Case summary

Supreme Court of NSW|2010-09-30

Background Facts 26 I set out some history of the Plaintiff and of the deceased. I am satisfied that the following facts are either not in dispute or each has been established by the evidence: (a) The Plaintiff was born in July 1957 and is presently aged 53 years; (b) The deceased was born in December 1941 and was aged 65 years at the date of her death; (c) The deceased's son, Michael, was born in September 1969; however, he died, in 1991, at the age of 22 years; (d) The deceased's daughter, Martine, the residuary beneficiary, was born in June 1970; she is aged 40 years; (e) The Plaintiff has never been married, and as far as he is aware, he is not the father any child; (f) The Plaintiff finished Year 10 at Marcellin College, Randwick; (g) Between October 1974 and August 1984, the Plaintiff worked at Readers Digest as a machine operator, storeman and sorter; whilst working at Readers Digest, he met the deceased; (h) The Plaintiff's relationship with the deceased commenced in about 1981. At that time, the deceased was married to David Cawley. At first, the relationship of the Plaintiff and the deceased was a sexual one only; (i) The deceased and her husband separated in 1985. She and the Plaintiff then moved in together; (j) In 1987, the deceased's father purchased a property for the deceased at Edinburgh Road, Marrickville ("property 138"). The Plaintiff assisted in the renovations of that property and when those renovations were completed, the deceased moved in. Until he moved in, the Plaintiff would stay at property 138 about four nights a week; (k) In March 1999, the Plaintiff sold property 138 for $253,000; (l) In 2003, the deceased's father died and the Plaintiff moved in with her mother at another property in the same street (the Marrickville property); (m) In 2003, the Plaintiff moved into the Marrickville property and assisted the deceased in looking after her mother; (n) In September 2004, the Plaintiff applied for a carer's pension in respect of his mother; (o) In August 2005, the deceased's mother died and the deceased inherited the Marrickville property, which was transmitted to her in December 2005; (p) In 2005, the Plaintiff's mother died; he inherited $100,000, which he had spent, by July 2009; (q) the legacy paid to him out of the deceased's estate has also been spent. 27 The Plaintiff asserted in his first affidavit, that "[I]n 1985, after the deceased separated from her husband … we commenced to live together and we lived together continuously and in the same residence until late 1997". He accepts that this evidence is wrong. Even without this concession, I would be satisfied that the Plaintiff and the deceased did not live together continuously and in the same residence, from at the latest, December 1992. In this regard, I note, by way of example, that in Ex 1, in the handwriting of the deceased, there appears, in relation to the Plaintiff, "Moved in on 18 August 1992" and "Des left 138 on Mon 26 Oct 92 owing rent + food money +electricity". 28 It is also clear that the Plaintiff told Centrelink, at different times, that he was not in a de facto relationship. (Statements to a government authority, apparently inconsistent with a party's case, may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances: Bar-Mordecai v Hillston [2004] NSWCA 65 (at [118]); Hayes v Marquis [2008] NSWCA 10 (at [99]).) 29 There is other evidence, which I accept, that the Plaintiff lived at different places for different periods of time, after December 1992. It is unnecessary to set out the different places at which he lived, and which he disclosed to Centrelink (see, Ex. 4 and the summary of pages relied upon). 30 There is no dispute that the Plaintiff lived apart from the deceased between late 1997 and mid 2000. 31 The Plaintiff asserts also, that from mid 2002 until after the deceased's death, he lived at the Marrickville property. Once again, it is accepted that this evidence is incorrect. I do not accept that he lived with the deceased continuously in that period. For example, it is clear that, throughout most of 2005, and until the middle of February 2006, the Plaintiff lived in his mother's property, at Bondi, although, on occasions, he may have visited the deceased at the Marrickville property or she may have visited him whilst he was living there. 32 There is really no dispute that the Plaintiff lived in the Marrickville property between about the middle of February 2006 until the deceased's death, and with the consent of the deceased's daughter, until about 2008. About 6 weeks after the deceased's death, he paid her daughter $280 per fortnight as rent. He also paid some of the electricity bills. There is no evidence that he paid any board or rent to the deceased in the period prior to her death. 33 There is a real dispute about the nature of the Plaintiff's relationship with the deceased in 2006. It is not in dispute that for most of this period, he slept in the front of the Marrickville property, whilst the deceased slept in the granny flat. However, the Plaintiff says that the reason for these sleeping arrangements was the state of health of the deceased; the Defendant says that those arrangements were demonstrative of the relationship. 34 The Plaintiff says that he owns a campervan ($10,000), has some household goods (with a value of $100) and has $5 in the bank. He owes his sister, Bridget Mulligan, $900, and her husband, Patrick, $4,000. He has some superannuation of a few hundred dollars but does not know the fund in which it is held. 35 The Plaintiff has relied upon an affidavit sworn 17 October 2009 from his sister, Bridget. Ms Mulligan states that the deceased kept in contact with her from the 1980's and that she expressed a keen interest in the Plaintiff and his family. She says that she was particularly concerned about the Plaintiff's mother and that the deceased would often speak to her by telephone. She says that the Plaintiff would come to her home at Christmas, the last such occasion being in 2005. 36 It became clear, from the oral evidence given by Ms Mulligan, that following the death of the Plaintiff's mother, proceedings were commenced by two of the Plaintiff's brothers seeking a family provision order out of her estate. Ms Mulligan was the sole Defendant in those proceedings. There is no dispute that in those proceedings, the Plaintiff did not apply for further provision. Bryson AJ heard those proceedings in May 2009 and the citation for the judgment delivered is [2009] NSWSC 399. 37 Although Ms Mulligan was unsure about the precise periods when the deceased and the Plaintiff lived together, and although some of the matters about which she gave evidence related to events that, undoubtedly, took place in the 1980's, I accept her evidence that she kept in contact with the deceased; that the deceased and the Plaintiff would attend family gatherings on "most Christmases", the last of which was in 2005; that the deceased enquired about the Plaintiff's mother; and that the Plaintiff and the deceased had lived together "off and on" since the 1980's and that "they'd been an item". 38 I also accept the evidence of Ms Mulligan that she heard the deceased and the Plaintiff discussing marriage. However, her evidence is that this was in the "1980's and 1990's a couple of times", and that on these occasions they were joking around. 39 Ms Mulligan also confirmed the evidence of the Plaintiff that he had been living at their mother's home, in Bondi, in 2005, and that after he had access to the legacy given to him by his mother, he used some of it to repay a debt to the deceased and to effect repairs to the Marrickville property. 40 There was a conflict of evidence between the Plaintiff's sister and the deceased's daughter as to a conversation said to have taken place after Christmas in 2006 regarding the sale of the Marrickville property. Ms Mulligan asserts that the deceased's daughter said that she was looking to sell that property and move to Wollongong and that the Plaintiff could move with her. 41 The conversation stated by Ms Mulligan was not denied in the affidavit of the deceased's daughter, although when it was put to her in cross-examination, she did deny that any such conversation had taken place. She said that she had never wanted to sell the Marrickville home. 42 I am more inclined to accept the evidence of the Plaintiff's sister on this topic. The conversation alleged occurred at a time shortly after the deceased's death. No doubt, at that time, the deceased's Will had been read and the terms of Clause 4 were apparent. It was likely that it was thought that the Marrickville property would have to be sold and that the proceeds of sale would be available to purchase another property in which the deceased's daughter could live. 43 The Plaintiff has relied upon an affidavit sworn 11 August 2010 from his friend, Alan Robert Sparks. Mr Sparks, who was not required to attend for cross-examination, states that he knew the deceased and the Plaintiff from before 1984; that he saw them reasonably regularly between 1984 and 2000: he considered them to be a couple; between 2000 and 2006, he saw them less frequently, although when he did, he still considered them to be living in a de facto relationship; that he spoke with the deceased a day or so prior to her death, and she said to him that the Plaintiff "is taking good care of me like a faithful old dog". 44 The Defendant has placed in evidence a copy of the Defendant's Will Information Form that is dated 1 December 2006. That document confirms the deceased's instructions stated in the Will that the legacy to the Plaintiff was "for support and care provided in the past years". It also confirms that the deceased's real estate (which, in the circumstances, should be taken to mean the Marrickville property) "to be sold and invested". 45 The Defendant relies upon an affidavit sworn 10 May 2010 of Jacques Rene Paul Mattei, the brother of the deceased and the father of two of the remainder residuary beneficiaries. He stated that, to his knowledge, the deceased had a number of different sexual partners in Sydney and elsewhere during the period after 1981; that he had met a number of them, one in particular, whom he identified as "Norm", whom, he said, the deceased had thought of marrying; he states that when the deceased permitted the Plaintiff to move into the Marrickville property, she did so because he had nowhere to live and had financial problems; that when there, the Plaintiff would assist the deceased in looking after their mother and that "this suited everyone". 46 Mr Mattei was cross-examined. He explained that he had been told by the deceased, on different occasions, that the Plaintiff was paying (or in some cases, was late in paying) board (the French word the deceased used really meant rent) to the deceased for his occupation of the Marrickville property; that he had been told that the deceased had once thought of leaving the Woodstock property to the Plaintiff, but had changed her mind; and that he had never seen the Plaintiff and the deceased being affectionate to one another. I accept his evidence as truthful. 47 The Defendant also read an affidavit of Norman Wong. Mr Wong was not required for cross-examination. He states that "although [the deceased] and I did travel together as a couple, sharing the one room, on a few short interstate holidays, and once to New Caledonia, our association was more a platonic relationship". Of course, he does not deny having a sexual relationship with the deceased. He also says that the deceased told him that she had lived with the Plaintiff for a number of years. 48 Overall, on the issue of the Plaintiff and the deceased having a common residence, I am satisfied that the deceased and the Plaintiff may have lived together for a period of time continuously in the 1980's, and that during that period, they were in a de facto relationship. However, after no later than December 1992, they did not live together, again, other than for relatively short and irregular periods, until early 2006. 49 It seems to me, looking at all of the evidence, that the deceased permitted the Plaintiff to move back into her home, on some occasions, after the end of their de facto relationship, and then, for different periods of time, and for reasons other than because they were in a de facto relationship. It seems to me that, in 2006, and at other times, it suited them both for the Plaintiff to be staying in the Marrickville property with the deceased. For example, in the period following the death of her father, the Plaintiff assisted the deceased looking after her mother, which assistance was acknowledged by her and by the deceased's family. The deceased provided the Plaintiff with a room and board during this period. 50 I turn to other relevant facts. In s 4(2)(a) of the Property (Relationships) Act 1984, "the relationship" cannot mean "the de facto relationship". As has been said by Campbell J (as his Honour then was) in Sullman v Sullman [2002] NSWSC 169 at [194]: The structure of section 4(2) is that one is required to take into account such of the matters listed in paragraphs (a) to (i) inclusive as might be relevant in the case, for the purpose of determining whether a de facto relationship exists. If "the duration of the relationship" is a factor to be taken into account in determining whether a de facto relationship exists, that means one must be able to tell what is "the duration of the relationship" before one has decided whether or not there is a de facto relationship. Thus "the relationship" in section 4(2)(a) must have a different meaning to "the de facto relationship". It seems to me that it involves a looser notion, under which the Court should take into account the duration of what is asserted to be the relationship, though also taking into account how the other factors listed in paragraphs (b) to (i) of section 4(2) might have changed during the course of that asserted duration of relationship. 51 Approaching the matter in this way, the duration of the relationship was from the early 1980's until the deceased's death in December 2006. However, during that time, in my view, the relationship underwent a change from a sexual relationship, to a de facto relationship, to a relationship of friendship. 52 The Plaintiff maintains that he continued to have a sexual relationship with the deceased from the time they met. It is probable that there was a sexual relationship between them, but it seems equally probable that he was not her only sexual partner. In this regard, I accept that the deceased did have a number of different sexual partners. 53 It also seems clear that the Plaintiff and the deceased had some financial interdependence. In Ex 1, the deceased complained that for part of the period he was living with her, he had not paid rent, or board, to her. The deceased's brother gave evidence, as did the deceased's daughter, of the Plaintiff paying rent or board to the deceased. 54 However, there is nothing in the evidence to lead to the conclusion that the Plaintiff and the deceased conducted any joint bank accounts (except for a short period in the 1980's) or that they acquired any property together. 55 I accept that the Plaintiff may have assisted the deceased, and later, her daughter, in maintaining the Marrickville property. The deceased's daughter asserted, however, that the deceased paid him for mowing the lawns. I do not think that any assistance by him was regular or substantial. 56 The deceased and the Plaintiff did not have any child, or children, to care for or support. There is no suggestion that the Plaintiff assisted in the care of the deceased's daughter. 57 There is a real dispute about the performance of household duties, the Plaintiff asserting that, at least, for the last 9 or 10 months of the deceased's life, he performed most of the duties associated with looking after her and the Marrickville property. The Plaintiff's daughter denies this. 58 I am of the view that the Plaintiff is likely to have assisted the deceased during this period, particularly as she was unwell, although that assistance may not have been to the level he suggested. Indeed, the deceased, in her Will, acknowledged "the care and support" that he had provided "in the past years". Therefore, I am satisfied that he did provide some care and support to her. 59 There is no doubt that the Plaintiff and the deceased were recognised as a couple by a number of people. The Plaintiff's sister recognised them as such (at least in the past), as did Mr Spence, who was not cross-examined. The deceased's family did not regard them in this way, however. I am concerned, in this regard, that any recognition as a couple which may have existed at one time, has become blurred, with such recognition at the date of the deceased's death. 60 I turn next to matters relating to the beneficiaries named in the deceased's Will. In Foley v Ellis [2008] NSWCA 288, Sackville AJA at [88] noted that Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 "… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act." 61 I am satisfied that the following facts are either not in dispute, or have been established by the evidence in relation to Martine. She is currently unemployed, and receives Centrelink payments of $418 per fortnight. She does not receive any rent from her friend, although the friend assists her by paying some bills, and for food, and is likely to assist with the expenses for utilities. 62 None of the remainder beneficiaries has given evidence in the proceedings. None has made a claim under the Act as she and he is not an eligible person. 63 It is necessary to consider how the Plaintiff says that he has been left without proper provision for his maintenance, education and advancement in life. He presently lives in a campervan that is situated in his employer's car park. He pays $170 per week for the space. There are no shower or cooking facilities. He earns $370 per fortnight as a driver and receives $525 per fortnight from Centrelink. His expenses are said to exceed his income. He seeks provision that will enable him to buy a property in which to live, which is estimated to cost between $200,000 and $300,000, together with a capital sum which will enable him to meet the shortfall in income over expenses, take out private medical insurance, enable him to buy some necessary furniture, whitegoods and clothing. If he does not receive enough to enable him to buy a property, it has been submitted that he should receive a substantial legacy of $175,000. It is submitted that the deceased's daughter would still receive about $655,000. 64 Since the only other eligible person has made a claim under the Act, which was dismissed for lack of due despatch, and because she has been given notice of the Plaintiff's claim, I may disregard her interests: s 20 of the Act. I do not do so. She and each of the remainder beneficiaries named in the Will is a chosen object of the deceased's testamentary bounty and it is for them that the deceased wished to provide by her Will. She is also the only child of the deceased. 65 The Defendant's counsel submit that the Plaintiff should receive nothing additional out of the estate of the deceased. They submit that if he establishes eligibility, factors warranting the making of the application, obtains an order extending the time for the making of his application, he should not receive a capital sum, and that any amount he receives should be subject to a protective trust. 66 I have had the benefit of receiving a written outline of submissions from counsel for the respective parties. Those documents will be retained in the Court file. 67 I turn now to the questions that need to be determined. Eligibility 68 Under the Act, the classes of persons entitled to make an application are defined (see, s 6). Unless the Plaintiff can establish that he is an eligible person in relation to the deceased, he does not have the status to bring the present proceedings, and his claim, therefore, must inevitably be dismissed. He relies upon various subsections of s 6. 69 Section 6(1)(a)(ii) provides that in the Act, except in so far as the context or subject matter otherwise indicates or requires, "eligible person", in relation to a deceased person, means a person with whom the deceased person was living in a domestic relationship at the time of the deceased person's death. A "domestic relationship" is either a de facto relationship as defined in s 4, or a "close personal relationship" as defined in s 5(1), of the Property (Relationships) Act, 1984. A de facto relationship and a close personal relationship are mutually exclusive, in that a close personal relationship is defined as a relationship, other than a de facto relationship. It may be possible, however, for two people to satisfy each definition at different times, if the nature of their relationship changes. 70 In this case, the Plaintiff asserts that he was in a de facto relationship with the deceased for about 22 years. The existence of a de facto relationship is disputed and is the subject of most of the evidence called by the parties. The evidence on the issue is in conflict. Despite the conflict of evidence, the Defendant acknowledges the deceased's friendship and cohabitation, on occasions, with the Plaintiff. 71 In the alternative, it is submitted, on behalf of the Plaintiff, that he and the deceased were in a "close personal relationship" at the date of her death. A close personal relationship (other than a marriage or a de facto relationship) is one between two adult persons, whether or not related by family, who are living together, one, or each, of whom, provides the other with domestic support and personal care. 72 It is also submitted that the Plaintiff is an eligible person within s 6(1)(d) of the Act, in that he was a member of the household of which the deceased was a member and was wholly or partly dependent upon her. 73 I shall deal with each of these grounds of eligibility. De Facto Relationship 74 The expression "de facto relationship" is now common parlance in Australia. It evolved 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 the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows between a man and a woman: KQ v HAE [2007] 2 Qd R 32 at [17]. 75 Section 4 of the Property (Relationships) Act 1984 (NSW) provides: 4 De facto relationships (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family. (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case: (a) the duration of the relationship, (b) the nature and extent of common residence, (c) whether or not a sexual relationship exists, (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties, (e) the ownership, use and acquisition of property, (f) the degree of mutual commitment to a shared life, (g) the care and support of children, (h) the performance of household duties, (i) the reputation and public aspects of the relationship. (3) No finding in respect of any of the matters mentioned in subsection (2)(a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case. (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship. 76 The legislation was recast, so that it no longer used the reference in the earlier definition to living together as "husband and wife", which terminology could lead to inappropriate search for analogies to the legal relationship of marriage. 77 It is clear, however, that the term constitutes a single composite expression of a comprehensive notion or concept. It must be approached by considering the expression as a whole and not in several parts: Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 at 685; (1987) DFC 95-052, at 75,589; Light v Anderson (1992) DFC 95-120; Bar-Mordecai v Hillston [2004] NSWCA 65, at [86], [125]; Hayes v Marquis [2008] NSWCA 10 at [73] - [74]. 78 The legislation does not provide a precise test for the existence of the de facto relationship. None of the matters listed in s 4 of the Property (Relationships) Act is of decisive significance. Some involve public aspects of the relationship and some private aspects. They all suggest a continuing course of conduct and behaviour, not an event at a fixed point of time. No matter how close the involvement in each other's emotional lives, a conclusion that people are living together as a couple involves consideration of the circumstances in which they are living, including the places at which they are living. The test is not primarily locational, but it has a locational element: Dion v Rieser [2010] NSWSC 50 per Bryson AJ at [14]. 79 In determining whether a de facto relationship exists, the court is often required to assess multiple pieces of circumstantial evidence. For this reason, the indicia set out in s 4 of the Property (Relationships) Act are inclusive, but not exhaustive. If there are sufficient pieces of evidence, when viewed cumulatively, and with common sense and proper reasoning, which satisfy the finder of fact that the relationship is a de facto relationship then the statutory test is met: Scragg v Scott [2006] NZFLR 1076 at [64]. Ultimately, the conclusion as to the existence, or otherwise, of such a relationship will turn on an evaluative assessment of matters of objective fact. 80 The concept of a de facto relationship was discussed by Gzell J in Ye v Fung [2006] NSWSC 243 at [64] and [65]: [64] A de facto relationship requires more than adult persons living together. They must live together as a couple. When one thinks of persons as a couple, one thinks of two people in a romantic relationship. That is the first meaning given in the Macquarie Dictionary (4th ed) with reference to people as a couple. The Oxford English Dictionary in defining the word in the sense of the union of two, or a pair, gives as its first meaning with reference to two people: 'A man and woman united by love or marriage; a wedded or engaged pair'. [65] In my view the words in the Property (Relationships) Act 1984, s 4(1)(a), in the context of the extension of relief under the Act to persons in a domestic relationship, connotes two adult unmarried persons living together, united by love, or living together in a romantic relationship. The effect of such a construction is that de facto relationships are confined to heterosexual and homosexual romantic relationships. 81 As was pointed out, however, in Re Estate of Sigg (dec'd) [2009] VSC 47 at [7]: In the case of Dow v Hoskins ([2003] VSC 206) Cummins J said that the determination of whether a person was living with the deceased should not be construed on narrow, formal, pedantic or merely geographical criteria, but should be considered taking into account the human reality of the personal, emotional and cultural complex. In that case his Honour took the view that he should approach the matter in that broader context. I agree with those observations and would add that it would be wrong to assume that the test of whether people are living in a genuine domestic relationship is to be judged against a model of a couple living together full-time, sharing fully domestic, financial and other responsibilities. That would place people claiming under these provisions at the very disadvantage which the provision is designed to remove. That would be so because people who are legally married live in married relationships in circumstances which vary dramatically from one couple to another, and it would be quite wrong to require that a couple seeking to invoke the provisions of s 51 should be judged by reference to a static model which may not bear a sufficient relationship to the reality of life and the diversity of arrangements existing between legally married couples. 82 Whilst the concept of a de facto relationship is complex and diverse, such a relationship can, and should, be distinguished from the relationship of two people, who live apart, but who have a sexual relationship, and who sleep over at one another's house; and also from the relationship of two people, who share a house, but who do not have a romantic commitment to each other and who have other sexual partners. The fact that one provides the other, on occasions, with financial, or other, assistance, such as accommodation, to alleviate hardship does not mean that they are in a de facto relationship. In this way, a de facto relationship is different from friendship, or courtship, which has not matured into the commitment where there is a merging of lives so that there is a mutual commitment to a shared life. It is also different from simple companionship. 83 It is important to note that there is nothing in the words of the Property (Relationships) Act that requires the parties to be in an exclusive relationship. Such a relationship can be established even where one, or both, parties are married to others, or in de facto relationships with others, at the same time: see, for example, Green v Green (1989) 17 NSWLR 343; (1989) 13 Fam LR 336. The de facto relationship may be more difficult to establish in such circumstances. 84 Often, as in this case, the parties' relationship may be seen as having gone through different phases. The facts applicable to those phases may be seen as having a bearing on the essential question whether the parties were in a de facto relationship at the date of death. The dominating factor will be whether the parties can be seen as living together as a couple at that time. One may, therefore, consider the facts of the parties' relationship in the different phases and then consider all of the facts. In this regard, there is no presumption, or inference, of continuance of such a relationship: S v B (No 2) [2004] QCA 449 at [2]. 85 The onus rests throughout the case on the person asserting the relationship to establish that continuance. Dutney J, in S v B, at [33] said: De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement. It has been recognised, however, that the persistence of those indicia are fundamental to the continuance of a de facto relationship. In Hibberson v George Mahoney JA, with whom Hope and McHugh JJA agreed, spoke of the de facto relationship as follows: There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to "live together" with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue. 86 I have considered the use of the word "friend" in the deceased's Will, in describing the Plaintiff, since the Will was made shortly before the deceased's death. The use of the word is not determinative of the nature of the relationship, although, of course, it tends to suggest that she did not regard him as her de facto partner when she made her Will. Taking into account the whole of the evidence, I am of the view that the word accurately describes the relationship that existed at the date of her death. 87 I have also considered the outward appearance of the relationship as disclosed by Mr Spence and by the Plaintiff's sister. The relevance of outward appearances is what it may reveal about the relationship of the deceased and the Plaintiff with each other, but it must be recognised that outward appearances can be deceptive. 88 All of the cases in this area are fact dependent. As has been demonstrated from the facts in this case, the relationship between the Plaintiff and the deceased appears to have been an unusual one. If it was a de facto relationship as the Plaintiff asserts, then there is little of the intermingling of finances, pooling of income, joint attendance at family functions, and merging of lives that is often evident in such a relationship. 89 On the other hand, if there is no de facto relationship then the extended periods of cohabitation, albeit at different times, between the parties, the nature and extent of assistance each apparently gave to the other, and the existence of a sexual relationship between them, albeit, in the case of the deceased not an exclusive one, may be regarded also as unusual. 90 On balance, having seen and read the evidence of the Plaintiff and of the witnesses, I am of the view that the Plaintiff and the deceased were not living in a de facto relationship at the date of her death. I am satisfied that whilst they may have had such a relationship in the 1980's, it had ended by 1992. This does not mean that they did not have a residual affection for one another or that they did not continue to have a sexual relationship. 91 In this regard, in addition to the matters set out above, I found the following aspects important in coming to this conclusion: (a) The deceased's brother's evidence was that in about June 2006, when the deceased was very ill, she went to Queensland and stayed with him for a couple of months. The Plaintiff did not attend with her. The Plaintiff was not employed at this time. Reasons of employment, therefore, did not prevent him from going with her. That she chose, at a time so close to her death, to leave the Plaintiff in Sydney, and stay for at least one month, or perhaps two months, apart from him, suggests that they had not merged their lives at that time, to the necessary extent; (b) The deceased's brother's evidence was that when the deceased was with him, she did not talk about the Plaintiff; this would be extremely surprising if they were in a de facto relationship and if the Plaintiff was doing all that he said he was for the deceased; (c) There was no evidence that the deceased telephoned the Plaintiff, or otherwise communicated with him, at any time, during the period that she was in Queensland with her brother in 2006; (d) The Plaintiff's sworn evidence, which evidence was demonstrably wrong (see, Ex 4), that he and the deceased commenced living together in 1985 and that they lived together continuously and in the same residence until late 1997; (e) No hospital, or other, records relating to the deceased were produced which identified him as the de facto spouse of the deceased; in fact, there are no contemporaneous documents of any kind, in which he is described as such; Ex 4 discloses that the Plaintiff, at different times, stated that he was single and not in any de facto relationship; if there was such a relationship, he would have told lies to Centrelink. Close Personal Relationship

92 Section 5 of the Property (Relationships) Act provides: 5. Domestic relationships

(1) For the purposes of this Act, a domestic relationship is:

(a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

(2) For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care:

(a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation). … (4) Except as provided by section 6, a reference in this Act to a party to a domestic relationship includes a reference to a person who, whether before, or after, the commencement of this subsection, was a party to such a relationship.

93 In Dridi v Fillmore [2001] NSWSC 319 at [102]-[104], Macready M (as his Honour then was) considered the elements that need to be present in order for two people to be considered to be in a close personal relationship: I have earlier referred to aspects of what the Act describes as a "close personal relationship". It has to be between two adult persons who are "living together". Given that they may be members of the same family, such as a grandparent and grandchild and the different definition for a "de facto relationship" concepts relating to a "couple" are not relevant. Instead the definition calls for two different links. The first is that the parties are "living together". The second is that "one or each of whom provides the other with domestic support and personal care.

So far as the first requirement is concerned we are not concerned with concepts applicable to couples; the requirement would be met if the parties shared accommodation together. For example, a border in an elderly widow's home would qualify. It may not be necessary for there to be sharing of food or eating arrangements together. In the present case this is not important as it seems that the parties ate together when they were both at home. The second requirement is cumulative. There must be both domestic support and personal care. In this case there is evidence of domestic support as the defendant provided for the plaintiff free accommodation and meals, which he cooked for the plaintiff when the plaintiff was at home. There are other matters, not present in this case, which could be domestic support, eg shopping for both parties, washing clothes etc.

94 In Sharpless v McKibbin [2007] NSWSC 1498; (2008) DFC 95-414, Brereton J stated at [71]: The inclusion within the Act of "close personal relationships" has the effect of extending the scope of the Act beyond marriage-like relationships. It does not follow that the approach applicable to a marriage-like relationship should also be applied in the context of a "close personal relationship" not amounting to a de facto relationship. "Close personal relationships" within the definition cover a wide range of relationships, and typically do not involve "a practical union of lives and property". In the case of a close personal relationship from which features of a marriage, such as union of lives and property, are absent, the rationale for the approach authorised by Mallet is much weakened, if not entirely removed. 95 In Hayes v Marquis [2008] NSWCA 10, McColl JA noted: 75 Counsel did not identify any authorities in which detailed consideration had been given to the interpretation of a "close personal relationship" in s 5(1)(b). The immediate requirements of the relationship are that it is between two adults, whether or not they are related by family, who are "living together" and one or other of whom provides the other with "domestic support and personal care". It cannot be a de facto relationship, or a marriage (s 5(1)(b)), nor one in which the domestic support and personal care is provided in the circumstances set out in s 5(2). Thus the concept of "living together" will always be something different from living together as a couple, one of the critical requirements for a de facto relationship.

76 The context in which s 5(1)(b) appears is also significant. A "close personal relationship" is one of two domestic relationships (the other being a de facto relationship) whose existence may be established to attract jurisdiction under the Act. The word "domestic" carries connotations of matters relating to a household. The definition contemplates, in my view, that the facts permit of the conclusion that the two adults are living as a household.

77 Finally, some guidance as to the purpose of s 5(1)(b) can be gleaned from the Second Reading Speech in which the Minister made it clear the amendments to the Act were to cover persons living in intimate relationships not hitherto covered.

78 Central to the primary judge's characterisation of the pre-1999 relationship was the proposition that the concept of "living together" in s 5(1)(b) did not require the parties to live together fulltime. In my view his Honour was correct in approaching the case on that basis. The definition of "close personal relationship" does not require the two adults to live together fulltime. The language of s 5(1)(b) does not require such co-habitation. Further a s 5 "close personal relationship" may be contrasted with a s 4 de facto relationship. A de facto relationship is one which might ordinarily be expected to emphasise common residence. However, while the definition of a de facto relationship requires a relationship between two adult persons who live together as a couple, s 4(2) makes it plain that sharing a "common residence" full-time is not essential to a conclusion that a de facto relationship exists: see also PY v CY [2005] QCA 247 (at [7]) per De Jersey CJ. Rather the significance of a common residence, in determining whether a de facto relationship exists, turns on its nature and extent.

79 Similarly, in my view, the question whether a couple are "living together" for the purposes of s 5(1)(b) will turn on an evaluation of the nature and extent to which they share a household. Having regard to the fact, however, that they do not have to live together as a couple to satisfy s 5(1)(b), it might be thought the requirement of a common residence might be somewhat more attenuated than in s 4.

80 Further, the concept of "living together" is only one of the three indicia of the relationship in s 5(1)(b). The decision as to whether the statutory definition is satisfied will, like the decision about whether a de facto relationship exists, ultimately be a value judgment which has regard to the three indicia to determine whether there is a relationship which fulfils the definition as a whole.

81 Young J (as his Honour then was) so held in Weston v Public Trustee (1986) 4 NSWLR 407, a case which concerned the phrase "living … as his wife … on a bona fide domestic basis" in s 6 of the Family Provision Act 1982. The applicant had been in a relationship with the deceased for thirty years during which time he had stayed at her flat in Homebush several days every week but had kept a separate residence in Bondi. They had holidayed together, shared a car for which the applicant paid and garaged, but whose operating expenses were paid for by the deceased. She had done almost all his laundry.

82 Young J held (at 408-409), by analogy with cases which turned on whether people had lived separately and apart for the purposes of grounds for divorce under the former divorce legislation, that the court "was not looking to see whether the parties were physically cohabitating but whether there was a relationship between them which was one which showed that the marriage relationship was still alive". The court was concerned to see whether the two parties had a bond akin to marriage. His Honour concluded that the word "living" in s 6 had the same connotation. Accordingly, it was not fatal to the applicant's case that she and the deceased had not physically lived in the same place seven days a week, fifty-two weeks a year. … 85 While Ms Bridger conceded the respondent provided domestic support, she challenged the proposition that the evidence disclosed that either the appellant or the respondent provided the other with "personal care" within the meaning of s 5(1)(b). She drew attention to Dridi v Fillmore [2001] NSWSC 319 (at [105] - [106]) where Master Macready said that personal care connoted care taken with respect to such matters as pertained to, concerned or affected the individual person or self or pertained to one's person, body or figure. She did not explain why the sort of care the respondent provided did not fall within that description.

86 Master Macready commented (at [108]) that he would not have thought that matters such as "emotional support" would "by themselves" fall within the expression "domestic support and personal care". Clearly each case will turn on its own facts. The Second Reading Speech contemplated that personal care services may encompass ensuring the physical and emotional support of one or both parties for the other.

87 For my part I have difficulty with an argument that parties accepted to be in a loving sexual relationship, as the primary judge found here, are not providing each other with personal care. And there may be cases where emotional support of itself will suffice. Society recognises the importance emotional support can play in an individual's well being. Psyche is just as much a personal attribute requiring sustenance as one's physical self. The notion of "personal care" should not be confined to matters relating to physicality.

96 Einstein J disagreed with the view of McColl JA, commenting:

167 An important pointer in the legislation is seen in the further requirements that one or each of the adult persons is to provide the other with domestic support and personal care. These requirements clearly support the above construction of the term "living together". The key to the correct construction inheres in the notion of two adults living together at the same time as one or each of whom provides and/or receives domestic support and personal care to the other. Whilst it must be acknowledged that there will always be borderline situations requiring close attention to be given to the material circumstances, the expression requiring the provision of "domestic support" would not seem to occasion any particular questions of ambiguity. 168 The other expression requiring the provision of "personal care" may well result in differences of opinion. The expression is not defined. The ordinary meaning to be attributed to this expression is simply the commonsense experience of one person caring in a personal way for the needs of another. In Dridi v Fillmore, Master [now Associate Justice] Macready expressed the view with which I agree, that the expression 'personal care' seemed to be directed at matters such as assistance with mobility, personal hygiene, physical comfort and emotional support. Nor would I regard this list as necessarily exhaustive. It is unnecessary to presently determine whether in the absence of the giving of assistance of the type outlined above, the giving of emotional support would qualify on its own as 'personal care', although this may well be the case. 97 Beazley JA, at [1] said that she "substantially agreed with the reasons of McColl JA". 98 The Plaintiff asserts that he was the "primary carer" of the deceased following her diagnosis with cancer. He says that he took her to chemotherapy, and to other medical appointments. He supervised her medication, including giving her injections. He massaged her legs. He says that in the last 6 months of her life, he would change her nightie, helped her into and out of bed and rolled her over to prevent bed sores. He says that he also did all of the cooking, shopping and housework. 99 Whilst I am satisfied that the Plaintiff did assist the deceased in the last months of her life, I do not think he did as much as he says that he did. In this regard, I note that in the period that she spent with her brother in 2006, there is no suggestion that she required any assistance. 100 However, I am satisfied that the Plaintiff enjoyed a close personal relationship at the date of her death and that he provided to her, in 2006, domestic support and personal care. There was also the necessary companionship living together and support necessary for a close personal relationship. The terms of the deceased's Will are important. Member of the Household and Partly Dependent

101 In case I am wrong about the Plaintiff's eligibility under the definition of 'eligible person' set out in s 6(1)(a)(ii) of the Act, the next category of eligibility into which the Plaintiff is said to fall is under s 6(1)(d) of the Act, namely that he was a person:

(i) who was, at any particular time, wholly or partly dependent upon the deceased person; and

(ii) who was ... at that particular time, or at any other time, a member of the household of which the deceased was a member. 102 There is no dispute in this case that, at various times, the Plaintiff and the deceased were members of the same household. This was certainly so from February 2006 until the date of the deceased's death. No doubt, there were other periods as well. The more difficult issue is whether he was ever wholly, or partly, dependent upon her. 103 In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002):

45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: "Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited. 104 In Skinner v Frappell [2008] NSWCA 296, it was said by Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal: The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough. 105 In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346, it was said: I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period.

106 In Williams v Legg (Court of Appeal, 16 March 1993, unreported), in a passage not set out in the report at 29 NSWLR 687, the Court of Appeal (Handley, Sheller and Cripps JJA) said: There has been a tendency in some cases to equate "dependent" with "financially dependent". In Petrohilos v Hunter (1991) 25 NSWLR 343 at 346 Hope JA, with whom the other members of the Court agreed, pointed out that while one of the commonest forms of dependence may be a financial one "in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays the other things" the word, as used in the statute, is not limited to financial dependence. 107 Counsel for the Defendant submitted that the Plaintiff was not dependent upon the deceased in 2006 because in May 2006, he had received the legacy of $100,000 left to him by his own mother to which he had access. 108 I do not accept this submission, firstly, because it does not deal with the period between February and May 2006, when he had not received his inheritance, and when he was living in the Marrickville property without paying rent to the deceased. 109 More importantly, the Defendant's submission is inconsistent with what was said by Samuels JA in Ball v Newey (1988) 13 NSWLR 489, at 492 (referred to in Alexander v Jansson [2010] NSWCA 176 at [14]): Counsel then suggested, as I understood him, that these circumstances produced no dependency because each of them was separately financially capable of acquiring somewhere to live, so that their decision to live together and finance their purchase jointly was, in some sense, an indulgence which the law should not countenance. I see no substance in this argument. I assume that dependency involves the total or partial satisfaction of need. But the need is not restricted to the requirements of basic necessity or sustenance: cf, in a different context certainly, the meaning of 'needs' in the Liquor Act 1912 as 'reasonable demands or expectations': Toohey v Taylor [1983] 1 NSWLR 743 at 749. Whether dependency, total or partial, exists is a question of fact: Aafjes v Kearney (1976) 50 ALJR 454; 8 ALR 455. It is not to be determined upon theoretical considerations. It is 'the actual fact of dependence or reliance on the earnings of another for support that is the test': per Gibbs J, as he then was, in Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177 at 189. 'The standard of support is set by the parties themselves' (at 190). Hence it is irrelevant that the appellant could have provided separate living accommodation out of his own income. That was not what he and the deceased chose to do. If it is relevant, it cannot be said that what they did choose to do was unreasonable; and, in order to support the mode of life they wished to pursue, each was, it is open to find, partially dependent upon the other. His Honour said that he could not see how the existence of a sexual relationship could make any difference to the financial dependency between two people. With all respect, I cannot accede to that proposition. I would have thought, that apart from anything else, it is the existence of a close sexual relationship which may support the moral obligations upon which legislation of this kind has been said to depend." 110 I am satisfied in this case that the Plaintiff was, at least partly dependent upon the deceased, at different times until the date of her death. She provided him with accommodation for the period from mid-February 2006 until her death, and did not require him to pay her any money by way of rent or board. 111 In the circumstances, I am satisfied that the Plaintiff is an eligible person.

Factors Warranting the Making of the Application 112 Because I have found the Plaintiff to be an eligible person within s 6(1)(d) of the definition of eligible person in the Act, I should deal with s 9 (1) of the Act, which requires him to establish that there are factors which warrant the making of the application. 113 Factors warranting the making of the application were described by McLelland J (as his Honour then was) in Re Fulop Deceased (1987) 8 NSWLR 679 at 681 as being: factors which when added to facts which render the applicant an "eligible person" give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. 114 In Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added: To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition. 115 These principles have been applied, at first instance, for many years. However, in Brown v Faggoter, a decision of the Court of Appeal constituted by Sheller JA, Sheppard AJA and Fitzgerald AJA (13 November 1998, unreported), in which Fitzgerald AJA, delivered the principal judgment, there seems to be the suggestion that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and, perhaps, an easier, test than that which the Court of Appeal approved in Churton v Christian. 116 In Penfold v Perpetual Trustee [2002] NSWSC 648, Windeyer J did not follow Brown v Faggoter. Bryson AJ also commented in Porthouse v Bridge [2007] NSWSC 686: In my opinion it would be an error to treat the strength of a claim for provision under s 7 as determinative, either way, of the question under s 9(1). Factors, however strong, which show that the making of the application is not warranted are not the object of enquiry and appear to be irrelevant. The use of language referring to a plurality of factors ("there are factors") is not in my opinion to be understood literally as meaning that the Court must recognize separately more than one factor; in my opinion the plural is used to indicate the generalised nature of the matter under determination. 117 More recently, in Diver v Neal [2009] NSWCA 54, Basten JA, with whom Allsop P and Ipp JA agreed, said of s 9(1): 8 As noted above, compliance with this requirement was not the first issue addressed by the primary judge, although s 9(1) envisages that it is to be determined before the Court decides whether to "proceed with the determination of the application". In practice, the factors relevant to the issue raised as a preliminary matter are, to a significant extent, co-extensive with those which must be addressed in determining whether the testator made adequate provision for the applicant: see Churton v Christian (1988) 13 NSWLR 241 at 242-243 (Hope JA) and 248-249 (Priestley JA). Nevertheless, the express distinction between two classes of eligible person must be recognised. It appears to have been drawn on the basis that persons falling within the first category (comprised of those identified in pars (a) and (b)) are "regarded as natural objects of testamentary recognition", whereas those falling within the second category (identified in pars (c) and (d)) are potentially appropriate objects of testamentary recognition, depending upon their circumstances: see Churton at 252 (Priestley JA) applying the analysis of McLelland J in Re Fulop Deceased (1987) 8 NSWLR 679 at 681. 118 Even though, respectfully, I consider that the views expressed in the authorities referred to by Windeyer J, Bryson J and Basten JA, are correct, I am satisfied, whichever test is applied, that the Plaintiff has established factors warranting the making of the application. That the deceased regarded the Plaintiff as an object of testamentary bounty is self evident from the terms of the deceased's Will. For reasons to which I shall come, I am also satisfied that the Plaintiff had reasonable prospects of success in making his claim.

Extension of Time for the Making of the Application 119 Sub-section (3) of s 16 of the Act provides that the Court shall not make an order under sub-section (2), allowing an application in relation to a deceased person to be made after the expiration of the prescribed period unless: (a) the parties to the proceedings concerned have consented to the application being made after the end of that period, or (b) "sufficient cause" is shown for the application not having been made within that period. 120 The Defendant does not consent to the extension of time for the making of the Plaintiff's application. It is necessary for me to consider whether there is sufficient cause for the application not having been made within the prescribed period. If there is, the court has a discretion to grant an extension "having regard to all the circumstances": s 16(2). 121 Hodgson J (as his Honour then was) in Lewis v Lewis [2001] NSWSC 321 at [82] said: In general terms, it seems clear that matters relevant to the exercise of discretion to extend time under s 16 include the existence and strength of a case for relief under the Act, the explanation given for failure to commence proceedings in time, any prejudice caused by the late commencement of proceedings, and any unconscionable conduct by either side. The second factor, the explanation, is specifically dealt with in s 16 of the Act which, in the absence of consent, precludes an extension being granted unless "sufficient cause is shown for the application not having been made within" the prescribed period. 122 His Honour noted that "sufficient" must mean something like "sufficient in all the circumstances to justify the granting of the extension of time". 123 The Plaintiff asserts that following the death of the deceased, he received some notice that the deceased's daughter had made a claim in the deceased's estate. He says that he did not receive any legal representation or advice until May 2009. He also says that at the time he received the Notice he was not thinking clearly, was not functioning very well, and was drinking heavily. He says that he did not know what the Notice meant. 124 It is clear that, in some respects, the evidence of the Plaintiff on this aspect is also wrong. He received the prescribed Notice, in respect of the claim by the deceased's daughter on, or about, 31 July 2009. The copy of the Notice annexed to his affidavit is dated 21 July 2009. By that date, the Plaintiff had already commenced these proceedings. 125 Despite the error in the Plaintiff's evidence, and even though he was likely to have received a similar Notice when his brothers commenced their proceedings in relation to his own mother's estate, I am satisfied that the Plaintiff did not know of his rights to make a claim until May 2009. An extension of time has been granted where the applicant was unaware of the right to apply: Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 at 505. 126 I am of the view that a sufficient explanation has been given for the lateness of the application. 127 Turning then to the principles governing the exercise of discretion on applications to extend time under the Act, apart from the reason for the lateness of the claim, the factors to which one must look include whether beneficiaries under the will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John [2010] NSWSC 937 at [37]-[51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]-[47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. 128 In the present case, I am satisfied that the deceased's daughter and the remainder beneficiaries would not be unacceptably prejudiced if time were to be extended. There is no claim by the Plaintiff in respect of moneys distributed to the deceased's daughter. The Marrickville property has been retained for 4 years, and she is, and has been, living in it during that period. 129 I do not find any unconscionable conduct on the part of the Plaintiff or the Defendant, and none was suggested. 130 I turn now to the strength of the Plaintiff's claim. This has relevance to the exercise of the Court's discretion, as it is obviously futile to let a claim proceed which is flawed or hopeless. As will become clear, I am of the view that the Plaintiff's claim should succeed. In those circumstances, it would be odd if, absent any prejudice to the estate, I am bound to refuse to entertain the application because it was out of time. 131 I am satisfied that leave should be granted, pursuant to s 16(3) of the Act, to the Plaintiff to institute the proceedings after the expiry of the prescribed period of eighteen months from the death of the deceased. I propose therefore to grant such leave.

Provision Made - Whether Inadequate 132 The question for determination is whether the provision (if any) made in the Plaintiff's favour by the deceased, either during her lifetime, or out of her estate, is, at the time the court is determining whether or not to make an order, inadequate for the proper maintenance, education and advancement in life of that Plaintiff. The power of the Court to make an order under the Act is enlivened by the formation of an opinion that the disposition of the deceased's estate effected by her Will is not such as to make adequate provision from her estate for the proper maintenance, education or advancement in life of the Plaintiff. 133 No criteria are prescribed in the statute as to the circumstances that do, or do not, constitute "inadequate provision for the proper maintenance, education and advancement in life". 134 The question is answered by an evaluation that necessarily takes the court to the provision actually made in the deceased's Will on the one hand, and to the needs for maintenance and advancement in life of the eligible person on the other. It has conventionally been said that this involves a consideration of the relationship between the deceased, the eligible person and other relevant persons having similar claims for adequate provision to be made for them: see Goodman v Windeyer (1980) 144 CLR 490 at 496. 135 "Provision" is not defined by the Act, but it was noted in Diver v Neal, that the term "covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person's lifetime". 136 Recently, it has also been noted that "'proper maintenance' is not limited to the bare sustenance of a claimant (cf Gorton v Parks (1989) 17 NSWLR 1), but requires consideration of the totality of the claimant's position in life including age, status, relationship with the deceased, financial circumstances, the environs to which he or she is accustomed, and mobility": Alexander v Jansson at [18]. 137 An order for provision out of the estate of a deceased person may require the provision to be made in a variety of ways, including a lump sum, periodic sum or "in any other manner which the Court thinks fit": s 11 of the Act. The court, if it makes an order for provision, "may specify the beneficial entitlements in [the] estate which shall bear the burden of the provision and, in relation to each entitlement, the part of the burden it is to bear": s 13 of the Act. The court is empowered, at its discretion, to order that such provision as the court thinks fit is made out of the estate of the deceased for that purpose. An order takes effect as a codicil to the Will s 14 of the Act. 138 As Bryson J noted in Gorton v Parks at 6, it is not appropriate to endeavour to achieve a "fair" disposition of the deceased's estate. It is not part of the court's role to achieve some kind of equity between the various claimants. The court's role goes no further than the making of "adequate" provision in all the circumstances for the "proper" maintenance etc of an eligible applicant. 139 In applications under the Act, the High Court in Singer v Berghouse, has set out the two-stage approach that a court should take. At 209, it was said: The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors. 140 In Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 ("Vigolo"), Gleeson CJ and Gummow and Hayne JJ at [37], [74] and [82]-[83] approved the two-stage test set out in Singer v Berghouse. 141 In Vigolo, at [114], Callinan and Heydon JJ said: [T]he use of the word "proper"… implies something beyond mere dollars and cents. It's use, it seems to us, invites consideration of all the relevant surrounding circumstances and would entitle a Court to have regard to a promise of a kind which was made here …The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what use to be called the "station in life" of the parties and the expectations to which that has given rise, in other words, reciprocal claims and duties based upon how the parties lived and might reasonably expect to have lived in the future. 142 And at [122] their Honours added: … Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question of whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however, will never be conclusive. The age, capacities, means, and competing claims of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

143 Reference must also be made to Collins v McGain & Anor [2003] NSWCA 190, in which Tobias JA, with whom Hodgson and Beazley JJA agreed, said: 42. Further, there can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focussed. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies.

As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is because of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration of a need to guard against the contingency to which I have referred. 144 In addition to the above principles, s 9(3) of the Act should not be forgotten because the matters referred to therein are relevant not only in determining whether an order ought to be made, but also in determining the nature of the order which should be made. Section 9(3) provides: In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) Any contribution made by the eligible person whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person; or (ii) the welfare of the deceased person, including a contribution as a homemaker; (b) The character and conduct of the eligible person before and after the death of the deceased person; (c) Circumstances existing before and after the death of the deceased person; and Any other matter which it considers necessary in the circumstances. 145 Counsel for the Defendant reminded me that it has been said many times that the Court should be careful not to interfere with freedom of testation except in circumstances where the legislation requires this to be done: see, for example, Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 per Dixon CJ at 19. 146 I was also reminded that the important consideration is whether, in all the circumstances, the community expectation of the deceased would be for greater benefaction to have been made for the proper or adequate provision for the person seeking provision. Gleeson CJ observed in Vigolo, at [11] that the justification for interference with freedom of testation is to be found in the failure of a deceased to meet the obligations, which the community would expect in terms of maintenance, for those persons within the class of eligible persons. Conclusion 147 I am satisfied, in the circumstances of this case that the Plaintiff, having received a lump sum of $5,000 in the Will, out of the deceased's estate, has been left with inadequate provision for his proper maintenance and advancement in life. 148 Having found, as a matter of fact, that there was inadequate provision for the Plaintiff under the deceased's Will, the second stage of the test in Singer v Berghouse requires the making of a holistic, and multi-faceted, judgment evaluating the proper provision that ought to be made for him Kalmar v Kalmar [2006] NSWSC 437 at [67] per White J; Foley v Ellis at [3] per Basten JA. I turn now to the nature of that provision. 149 I do not consider that the Plaintiff should receive as much as has been submitted by his counsel he should receive. I am of the view that a lump sum, which equates to 7% of the net residue, in addition to the provision made for him in the Will of the deceased, would be adequate, and proper, in all the circumstances. This would leave the deceased's daughter with 93% of the net residue held on trust for her in accordance with the terms of the deceased's Will. 150 I accept the submission that the lump sum should not be paid to the Plaintiff in full. There should be paid, on his behalf, an amount that equates to no more than 1% of the net residue to enable him to purchase clothing and furniture. His debts should be paid also. If he requires an additional amount from the balance of the provision made for him, that will be in the discretion of the trustee, who should hold that balance on similar terms as the trust for the deceased's daughter. 151 As requested by counsel for the parties during final submissions, I shall not make any orders today, but shall allow the parties to have an opportunity to come to a precise arrangement as to what orders are to be made in accordance with these reasons. In particular, I will hear submissions on the question whether it is necessary, formally, to appoint a different trustee to administer the trust in favour of the Plaintiff, or whether this can be done by the Defendant, as part of the administration of the deceased's estate. 152 I shall stand the matter over for two weeks for the making of the orders that the parties ask me to make. 153 If the parties cannot reach agreement on the appropriate orders, or the order for costs, I shall hear competing submissions on the adjourned date.

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CITATION : Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137

Alexander v Jansson [2010] NSWCA 176 Amaca Pty Ltd v Novek [2009] NSWCA 50 Ball v Newey (1988) 13 NSWLR 489 Bar-Mordecai v Hillston [2004] NSWCA 65 Brown v Faggoter (Court of Appeal, 13 November 1998, unreported) Burton v Moss [2010] NSWSC 163 Campbell v Chabert-McKay [2010] NSWSC 859 Churton v Christian [1988] NSWCA 23 Coates v National Trustees Executors and Agency Co Ltd & Anor (1956) 95 CLR 494 Collins v McGain [2003] NSWCA 190 Dion v Rieser [2010] NSWSC 50 Diver v Neal [2009] NSWCA 54 Dridi v Fillmore [2001] NSWSC 319 Durham v Durham [2010] NSWSC 389 Foley v Ellis [2008] NSWCA 288 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Green v Green (1989) 17 NSWLR 343 Hayes v Marquis [2008] NSWCA 10 John v John [2010] NSWSC 937 CASES CITED : Kalmar v Kalmar [2006] NSWSC 437 KQ v HAE [2007] 2 Qd R 32 Lewis v Lewis [2001] NSWSC 321 Light v Anderson (1992) DFC 95-120 Penfold v Perpetual Trustee Co Ltd [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Re Estate of Sigg (dec'd) [2009] VSC 47 Re Fulop Deceased (1987) 8 NSWLR 679 S v B (No 2) [2004] QCA 449 Scragg v Scott [2006] NZFLR 1076 Sharpless v McKibbin [2007] NSWSC 1498 Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677 Singer v Berghouse (No2) [1994] HCA 40 Skinner v Frappell [2008] NSWCA 296 Sullman v Sullman [2002] NSWSC 169 Taylor v Farrugia [2009] NSWSC 801 Thompson v Mulligan [2009] NSWSC 399 Vigolo v Bostin [2005] HCA 11 Williams v Legg (Court of Appeal, 16 March 1993, unreported) Ye v Fung [2006] NSWSC 243

(1989) 13 Fam LR 336

Thompson v The Public Trustee of New South Wales

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