Ulcej v Hannink [2008] NSWSC 479 | Case summary

14 The Plaintiff was born in Slovenia, on 22 August 1932, and is presently aged 75. He asserts that he was the de facto spouse of the Deceased (whom he referred to as "Reky") from March 1975, until her death on 31 January 2000. At the time when they met in May 1973, the Plaintiff, who was then aged 40, was living in rented accommodation in Adamstown (a suburb of Newcastle). The Deceased was at that time aged about 56. The Plaintiff said that during the ensuing two years he and the Deceased went on many dates together and stayed at each other's residences. The Plaintiff said that he helped the Defendant to paint her house, purchasing the necessary materials, and that he also helped her with household maintenance at weekends. 15 In 1974 the Plaintiff purchased a Rover 2000 motorcar, and he subsequently acquired a driver's licence in April 1975. The Deceased did not own a motor vehicle, and the Plaintiff thereafter did all the driving for himself and the Deceased. 16 According to the Plaintiff, the Deceased said to him, "I want you to come and live in my house with me". The Plaintiff thereupon moved into the Deceased's residence at 21 Norris Avenue, Mayfield West, where they each maintained their own separate bedchambers. The Plaintiff said that it was in the Deceased's bedchamber that they participated in sexual relations. (The Plaintiff said that from the time of their first meeting on 25 May 1973 a sexual relationship had obtained between.) The Plaintiff remained in the Norris Avenue residence for more than 30 years, until December 2005. 17 At the time when he moved into the Morris Avenue residence the Plaintiff was employed in the Goninans foundry at Broadmeadow as a tradesman and moulder, earning about $350 a week. He had worked for that employer since November 1968. He remained in that employment until shortly after he attained the age of 65 in 1997, and has not worked since then. The Deceased was not in employment at the time of the commencement of the relationship (or, as I understand it, at any time from then until her death). However, it was the Deceased's practice to take in boarders at her residence. The Deceased was in receipt of a widow's pension, which at the time when the Plaintiff moved into residence with her was in an amount of about $140 a week. The Plaintiff said that the arrangement between himself and the Deceased was that the Plaintiff paid to the Deceased an amount of $50 a week in cash, in respect to accommodation, and that they shared equally the costs of groceries and other expenses. 18 The Plaintiff gave evidence of his contributions of a physical nature towards the conservation and improvement of the Norris Street property. 19 When he ceased employment in 1997 the Plaintiff received what was referred to as a "separation payment" of about $35,000. He also gave evidence that in 1987 he had purchased 500 shares in Howard Smith which he sold in the late 1990s. In addition, upon relinquishing his employment in 1997 the Plaintiff received a superannuation payment of $100,000, which sum he invested in IPAC (which was described as being the investment arm of the Commonwealth Bank). The Plaintiff said that he withdrew that money, in varying amounts, between 1997 and 2000. He also said in his oral evidence that he spent a fair bit of that money on the purchase of a computer. Under cross-examination, he said that he did not know what happened to the balance of that sum of about $100,000, and that of the total amount of about $135,000 which he had received when he ceased employment in 1997 hardly anything was left by January 2000. 20 In December 2000 the Plaintiff won almost $36,000 at Keno. Of that sum he gave to the executor, Alex Hannink, an amount of $10,000, to be held by the executor for safekeeping, and also to be used by the executor towards household expenses. With the residue of those winnings the Plaintiff spent $2000 on the purchase of an air conditioner for the house, $4000 on repairing his motor vehicle, $600 on a refrigerator, $1200 on a computer, and the balance on an overseas trip to Europe of 10 weeks' duration, commencing in March 2001. 21 In July 2001 the Plaintiff had a further win at Keno, in the sum of about $33,600. From those second winnings, the Plaintiff gave a further amount of $10,000 to the executor for safekeeping. He paid off some debts, totalling about $3,000, and he gave $2,500 to his sister in Slovenia. 22 The Plaintiff also invested money in various business ventures, all of which were unsuccessful, and all of which incurred considerable computer and telephonic expenses for the Plaintiff. 23 The Plaintiff is presently residing in rented accommodation at unit 1, 36 Crebert Street, Mayfield, for which he pays rent of $240 a fortnight. The Plaintiff's only income is an age pension from Centrelink, currently in an amount of $519.20 a fortnight. He receives rental assistance from Centrelink in an amount of $105 a fortnight. The Plaintiff gave evidence concerning his expenses and outgoings, in an estimated amount totalling about $603 a fortnight (that amount including rent of $260 a fortnight). Apart from a 1984 Holden Camira motorcar (to which he attributed a value of $750), the Plaintiff's only other asset consists of his bank account, having a minimal credit balance. The Plaintiff has a slight shortfall of expenses over income in an amount of about $12 a week. 24 The Plaintiff has liabilities, which include a bank loan of $2,500 owing to the Commonwealth Bank, personal loans of $540 and of $500, and an indebtedness to a naturopath in an amount of $450 (those liabilities totalling $3,990). 25 The Plaintiff is desirous of paying off his debts and of acquiring a new motor vehicle, since he said that his present car is very old and not dependable. He gave evidence of the cost of a new car suitable to his needs, such as a Ford Falcon, which would cost about $25,000. The Plaintiff has expressed a desire to be able to acquire his own residence. 26 The present proceedings were not instituted within the prescribed period of eighteen months after the death of the Deceased (that is, on or before 31 July 2001) as required by section 16 of the Family Provision Act. However, by prayer 2 of the amended summons the Plaintiff seeks an order that the time for the making of the application be extended to the date of the filing of the summons (on 27 June 2006), pursuant to subsection (2) of section 16. 27 The claim of the Plaintiff must be approached in the light of any competing claims upon the testamentary bounty of the Deceased, and the claims of any persons to whom the Deceased owed a testamentary duty. At the time of the death of the Deceased those persons were the three children of the Deceased. Now they are the two surviving children of the Deceased, being Ieke Anne Mary Hofgen, and the Defendant. 28 Some evidence has been place before the Court concerning the financial and material circumstances of those persons. The Defendant is married, with four daughters. Two of the daughters have left home. The other two, and the respective partners, reside with the Defendant and his wife at their residence, 54 Headingly Road, Mount Waverley in Victoria. The Defendant, who is a retired metallurgist, is in receipt of superannuation. He owns shares and a home unit, upon which there is a liability of about $386,000 and he has a credit card debt. The Defendant said that he and his wife have no immediate needs. However, in accordance with what he stated to have been the intention of his mother, the Deceased, the Defendant and his wife are attempting to accumulate a fund which will ultimately pass to their children and grandchildren. 29 The only information available concerning the other surviving child of the Deceased, Mrs Ieke Hofgen, is, as has already been recorded, the fact that she was born in the Netherlands on 31 January 1940, and is presently aged 67. The affidavit of the Defendant discloses her address as being in Holland. Although an affidavit of Mrs Hofgen, dated 3 April 2007, was filed on behalf of the Defendant, that affidavit was not read in the proceedings. 30 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff. 31 I have had the benefit of receiving a written outline of submissions and a chronology from Counsel for the respective parties. Those documents will be retained in the Court file. 32 The Plaintiff asserts that he was for a period of at least 25 years the de facto partner of the Deceased. That status of the Plaintiff was not conceded by the Defendant. However, at the hearing the Defendant, whilst denying the existence of a de facto relationship between the Plaintiff and the Deceased, did not dispute the existence a close personal relationship between the Plaintiff and the Deceased. 33 Originally, it was asserted on behalf of the Defendant that the Plaintiff had been only a boarder in the Deceased's residence. 34 It will be appreciated that, unless the Plaintiff can establish that he is an eligible person in relation to the Deceased (living in a domestic relationship with the Deceased, either in a de facto relationship or in a close personal relationship, within paragraph (a) of the foregoing definition), the Plaintiff does not have the status to bring the present proceedings, and his claim therefore must inevitably be dismissed.

35 Accordingly, it is necessary at the outset to make a determination as to whether the Plaintiff was, as he asserts, the de facto partner of the Deceased at the time of her death. 36 The Family Provision Act incorporates, by reference, the definition of a domestic relationship contained in section 5 (1) of the Property (Relationships) Act 1984, which definition includes a de facto relationship and a close personal relationship. 37 Section 4 (1) of that latter statute defines a de facto relationship as being: 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. 38 Section 4 (2) provides, 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. 39 Subsection (3) of the foregoing section provides, 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. 40 The foregoing definition of a domestic relationship contained in section 5 also includes a close personal relationship. Subsection (1) refers, in paragraph (b) thereof, to, 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. 41 In her latter years the Deceased suffered a number of health problems. She had undergone a hysterectomy in 1971. In 1993 she was diagnosed with osteoarthritis and thereafter experienced pain in her shoulders, hands, elbows, and ankles. As her condition deteriorated, the Deceased became increasingly dependent upon the Plaintiff, who assumed greater responsibility for household domestic activities. In 1998 the Deceased lost the mobility in her left arm. She underwent a mastectomy of her left breast in December 1999. 42 In 1997 the Plaintiff became the Deceased's full-time carer, and commenced to receive a carer's pension of $75 a week from Centrelink. He assisted the Deceased in all aspects of her life from then until her death. Those responsibilities of the Plaintiff included administering the Deceased's insulin injections, assisting her with washing, bathing and dressing, taking her to all medical appointments and hospitals. The Plaintiff during the last five years of the Deceased's life assumed the totality of the responsibility for all household activities. When the Deceased was in hospital the Plaintiff, while still in employment, visited her after work every day. After he ceased employment, the Plaintiff spent virtually all his time with the Deceased when she was in hospital. 43 The Plaintiff said that, whilst they went to many social functions together, they did not publicly hold themselves out as being in a de facto relationship. 44 Throughout a period of almost 25 years the Plaintiff and the Deceased lived together sharing the Deceased's residence. A sexual relationship obtained throughout the entirety of that period, and for several years beforehand. Whilst the Plaintiff and the Deceased maintained their separate finances, nevertheless, the Plaintiff contributed towards the household expenditure, and paid the Deceased an agreed sum each week. 45 It is quite apparent that there was a total mutual commitment by each of the Plaintiff and the Deceased to a shared life. They went on many outings and holidays together, as well as indulging in other entertainments. The household duties and responsibilities were shared between the Plaintiff and the Deceased, until, on account of the Deceased's declining health, those responsibilities devolved entirely upon by the Plaintiff. 46 Corroborative evidence concerning the nature of the relationship between the Plaintiff and the Deceased was given by various of their friends and acquaintances, none of whom were cross-examined on behalf of the Defendant. 47 I am completely satisfied that throughout the period from March 1975, when the Plaintiff moved into residence with the Deceased at the Norris Avenue property, until the Deceased's death almost 25 years later, the Plaintiff and the Deceased were in a de facto relationship. 48 Accordingly, the Plaintiff is an eligible person within paragraph (a) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. As, such, he has the standing to bring the present proceedings. (I should, for completeness, record that, even if I had not been satisfied that the Plaintiff was the de facto partner of the Deceased at the time of her death, I would nevertheless have been satisfied that the Plaintiff and the Deceased were living in a close personal relationship, and that the Plaintiff, in consequence, is an eligible person within paragraph (a) of the foregoing definition. As I have already recorded, the Defendant did not dispute the existence of a close personal relationship between the Plaintiff and the Deceased.) 49 Considerable evidence was placed before the Court, both by the Plaintiff and by the Defendant, concerning the circumstances by which the Plaintiff departed from the Norris Avenue residence, and in which (according to the Plaintiff) the provisions of the will concerning the entitlement of the Plaintiff to remain in that residence, appeared to be either subverted or, at least, disregarded. It was the case for the Plaintiff that there had been unconscionable conduct on the part of the Defendant, which had resulted in the Plaintiff, in effect, giving up the right of residence granted to him under the will of the Deceased. 50 Since the Norris Avenue property has now been sold, there is no way in which the Plaintiff can be restored to the position to which he was entitled under the terms of the will. Further, the nature of the personal relationship between the Plaintiff and the Defendant is such as to make it undesirable, in a practical sense, that the trust envisaged by clause 3 of the will of the Deceased should remain in existence. 51 However, the circumstances in which the Plaintiff relinquished that entitlement and in which the Norris Avenue property was sold are relevant to the Plaintiff's application to bring the proceedings after the expiry of the prescribed period of 18 months from the date of death of the Deceased. That application for extension of time was opposed by the Defendant. 52 The circumstances in which, during the continued occupancy by the Plaintiff of the Norris Avenue residence, after the death of the Deceased, the Defendant attempted to arrange for other persons to reside therein, certainly does not accord with my understanding of the effect of the provisions of clause 3 of the will of the Deceased. Further, it should here be observed that the Defendant did not attempt to exercise the absolute discretion given to him by the will to sell the Norris Avenue property "and purchase another property in which the said MICHAEL ULCEJ may reside on terms as provided herein." 53 It was only after he found himself without accommodation in the Norris Avenue property (irrespective of whether or not that situation arose through what is now alleged on behalf of the Plaintiff to have been unconscionable conduct on the part of the Defendant) that the Plaintiff sought legal advice and instituted the present proceedings. 54 The Defendant opposed the application of the Plaintiff for an extension of time in which to bring his claim. 55 In Massie v Laundy (7 February 1986, unreported) Young J (as he then was) said that, in considering whether there is "sufficient cause" of the nature recognised by section 16 (3) of the Family Provision Act for the extension of the prescribed period, the following factors should be considered: · Is the reason for making a late claim sufficient? · Would the beneficiaries under the will be unacceptably prejudiced if the time were extended? · Has there been any unconscionable conduct, on either side, which would enter into the question? 56 In the instant the Plaintiff was content with the benefit given to him by the will of the Decease regarding the right of residence in the Norris Avenue property for his life. It was the change of circumstance arising from his departure from the Norris Avenue property, and the manner in which that departure occurred, at the instance of the Defendant, which caused him to commence the present proceedings. 57 Although empowered by the will to purchase an alternative residence for the Plaintiff, the Defendant, after the Plaintiff had been encouraged (to use a somewhat neutral phrase) by the Defendant to relinquish residence in the Norris Avenue property, on 6 April 2006 informed the Plaintiff that he would not be purchasing a substitutionary property in which the Plaintiff might reside for the balance of his life. The attitude of the Defendant, both before and immediately after the departure of the Plaintiff from the Norris Avenue property, appears to have been that the Plaintiff was not capable of maintaining, or paying for the upkeep of, such a residence (despite the fact that the Plaintiff's obligation in that regard under the terms of the will was satisfied by the payment of $50 a week). 58 On 25 June 2006 the solicitor for the Defendant undertook not to release the net proceeds of sale of the Norris Avenue property if proceedings were commenced. The Plaintiff instituted the present proceedings two days later, on 27 June 2006. There has been no distribution of the chief asset of the estate, being the proceeds of sale of the Norris Avenue property, which is presently held in a trust account in the name of the Defendant. I am in agreement with the submission on the part of the Plaintiff that the reason for the making of a claim after expiry of the prescribed period was, essentially, the foregoing conduct of the Defendant regarding the continuing occupancy of the Plaintiff in the Norris Avenue property and the failure of the Defendant to exercise the discretion vested in him by the will to sell that property and to purchase a substitutionary property in which the Plaintiff could reside for the rest of his life. The beneficiaries will not be unacceptably prejudiced if the time for the institution of the proceedings be extended. 59 The only unconscionable conduct suggested has been on the part of the Defendant. As early as May 2003 the Defendant was seeking to persuade the Plaintiff to vacate the Norris Avenue property, with a view to its sale, and the purchase of other accommodation in which the Plaintiff could reside. 60 It was submitted on behalf the Plaintiff that the Defendant engaged in the following conduct in the course of persuading the Plaintiff to vacate the Norris Avenue property: · The Defendant grossly overstated and misrepresented to the Plaintiff the nature of his obligations to maintain and repair the estate property, to the extent that the task of keeping the property appeared overwhelming to the Plaintiff. · The Defendant represented to the Plaintiff that if he moved to alternative premises, the Plaintiff would receive financial support from the estate. However, that promise was withdrawn by the Defendant, within five months of the Plaintiff vacating the Norris Avenue property in December 2005. · The Defendant sought to persuade the Plaintiff that he could not afford to stay on the estate property, in circumstances where the Defendant's real desire was to sell the property for the benefit of himself and the other beneficiaries. · The Defendant clearly brought unreasonable pressure on the Plaintiff to move. He enlisted the help of a cleric, the Reverend Lawrence Caelli, to persist in persuading the Plaintiff to leave the estate property. The Plaintiff had, at that time, been in receipt of material assistance from the St Vincent de Paul Society in 2003 - 2005, the Reverend Mr Caelli being associated with that entity. 61 It was submitted on behalf of the Plaintiff that it is clearly open to the Court to characterise the conduct of the Defendant (first, in not carrying out the provisions of the trust created by clause 3 of the will; second, in misrepresenting to the Plaintiff the obligations of the Plaintiff under that clause; and third, in representing to the Plaintiff that he would receive financial support from the estate if he vacated the Norris Avenue property, and then, after the Plaintiff had vacated the property, withdrawing that offer of financial support) as unconscionable conduct. There was no suggestion of any unconscionable conduct on the part of the Plaintiff. 62 The foregoing conduct of the Defendant (which is open to be characterised as unconscionable conduct) certainly provides an entirely adequate explanation for the proceedings not having been instituted within the prescribed period. The Defendant failed to carry out the terms of the trust. He then brought about a situation in which the Plaintiff did not institute the present proceedings within the prescribed period. The present reliance by the Defendant upon that conduct by himself as a ground for opposing the Plaintiff's application for an extension of time, could also be characterised as unconscionable. 63 I am satisfied that the Plaintiff has shown sufficient cause for the proceedings not having been instituted within the prescribed period, and that leave should be granted to him to institute the proceedings after the expiry of the prescribed period of eighteen months from the death of the Deceased. 64 I propose therefore to grant such leave. 65 In carrying out the first stage in the two-stage process identified by the High Court of Australia in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 208 -210 (the correctness of which test was affirmed by the High Court in Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191) the Court must determine whether in consequence of the provisions of the will of a testator the applicant has been left without adequate provision for his proper maintenance. 66 By her will the Deceased gave to the Plaintiff a right of residence in the Norris Avenue property, subject to certain conditions (the practical effect whereof was an obligation on the part of the Plaintiff to pay $50 a week towards the repairs and outgoings in respect to that property). Even if the Defendant had carried out the terms of the foregoing provisions of the Deceased's will in favour of the Plaintiff, I nevertheless consider that the Plaintiff, the de facto partner of the Deceased for a period of almost 25 years, was by the foregoing testamentary dispositions of the Deceased, left without adequate provision for his proper maintenance. 67 In those circumstances it falls to the Court to remedy that omission on the part of the Deceased, in the light of the present circumstances of the Plaintiff. 68 Whilst it was the present desire of the Plaintiff to acquire a residence of his own, it should be borne in mind that the Plaintiff has never owned his own residence. He lived in rental accommodation until he moved into residence with the Deceased at the Norris Avenue property. I do not consider that the Plaintiff has established an entitlement to receive from the estate a benefit which will enable him to purchase a residence in his own name. However, the Plaintiff should receive a benefit which will ensure that for the rest of his life he will be able to meet the rent of his present accommodation, or of similar accommodation. 69 It was submitted on behalf of the Plaintiff that a starting point in the consideration of the provision to be made for the Plaintiff was the quantification in monetary terms of the Plaintiff's right of residence for life in the Norris Avenue property. The Plaintiff referred to his life expectancy of 10.06 years, and performed a calculation, by applying the 5 percent tables in respect to the sale price of the Norris Avenue property ($260,000), to result in a figure of $100,360. The Plaintiff in adopting that approach relied upon the decision of Young J in Caldwell v Ang (11 April 1991, unreported). 70 It seems to me, however, that the foregoing approach is not appropriate to a calculation of a component in the entitlement of the Plaintiff for provision. The Court is here looking to make an order for the adequate provision for the Plaintiff's proper maintenance. The Court is not here performing a calculation of damages which might be appropriate for the wrongful ouster of the Plaintiff from the Norris Avenue property. 71 Accordingly, for his accommodation, the Plaintiff should receive a component which will ensure the payment of his rent for the rest of his life. That rent is, in round figures, in the sum of $4,030 a year (taking into consideration the rental assistance which he receives from Centrelink). Whilst it may be expected that the rent will probably rise during the remainder of the Plaintiff's life, nevertheless, the Plaintiff will receive that component as a present lump sum. I consider, therefore, that an amount of $50,000 is appropriate for that component. 72 The Plaintiff is, in addition, entitled to components which will enable him, first, to discharge his present debts of about $4000; second, to acquire a replacement motor vehicle for about $25,000; and, finally, to enable him to enhance his frugal lifestyle and to provide a fund to meet unexpected contingencies. In all the circumstances, I consider it appropriate that the Plaintiff should receive a legacy in the sum of $120,000. 73 The information available to the Court concerning the financial and material circumstances of the surviving children of the Deceased is such that the competing claims of those beneficiaries will not have the effect of reducing, let alone extinguishing, an order for provision in favour of the Plaintiff in the foregoing amount of $120,000, to which the Plaintiff has otherwise established an entitlement. 74 Accordingly, I make the following orders: 1. I order that the time for the institution of these proceedings be extended up to and including 27 June 2006. 2. I order that, in addition to the benefits given to him by the will of the late Hendricka Jantine Hannink ("the Deceased"), the Plaintiff receive a legacy in the sum of $120,000, such legacy not to bear interest if paid on or before 19 June 2008 and if not so paid, to bear interest at the rates prescribed for unpaid legacies by the Probate and Administration Act 1898. 3. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendant on the indemnity basis be paid out of the estate of the Deceased. 4. The exhibits may be returned. **********

Ulcej v Hannink

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (5)

Cited By (1)