McKENZIE v BADDELEY [1991] NSWCA 197

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

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

[1991] NSWCA 197

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

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

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

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

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

s6, s7, 9 Family Provision Act

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