Davis & Ors v Hore & Ors [1999] NSWSC 1265

New South Wales Supreme Court CITATION : Davis & Ors v Hore & Ors [1999] NSWSC 1265 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3888/98 HEARING DATE(S) : 28 October 1999 JUDGMENT DATE : 28 October 1999

Diana Davis (First Plaintiff)

Julia Penelope Hore PARTIES : (Second Plaintiff)

Adrian Mitchell Hore Wilda Iona Lambie Phillip Adrian Hore (Defendants) JUDGMENT OF : Acting Master Berecry

Mr R Cameron (Plaintiffs) COUNSEL : Mr R Colquhoun (Defendants) Hynes & McCormack of Murwillumbah (Plaintiffs) SOLICITORS : Piper & Associates of Tweed Head (Defendants) CATCHWORDS : Separation, property order by Family Court, short marriage, intention of parties to finally end their marital financial commitment ACTS CITED : Family Provision Act 1982 O'Shaughnessy v Mantle (1986-87) 7 NSWLR 142 CASES CITED : Dijkhuijs v Barclay (1988) 13 NSWLR 639 Kristil v Warington (NSWSC unreported, 25 July 1994 Young J) DECISION : See para 17

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THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ACTING MASTER BERECRY THURSDAY 28 OCTOBER 1999 3888/98 - DIANA DAVIS & ORS v ADRIAN MITCHELL HORE & ORS JUDGMENT

1 ACTING MASTER: This is an application by the widow of the deceased and his daughter of the marriage to the widow. The application is brought under s 7 of the Family Provisions Act 1982. Both the widow and the child are eligible persons pursuant to s 6 of the act. Both plaintiffs fall within the strongest category of eligible persons. Under the terms of the deceased's will he left his two children Julia, the second plaintiff in these proceedings, and Jack, the plaintiff in other proceedings, eighteen fortieths of his estate. The net estate today is $405,000. Therefore, Julia and Jack receive approximately $91,000 each, if there was no alteration made by me to the deceased's will. 2 The deceased also made provision for Robyn Lewis, his then defacto, his sister and step sister, his mother and father and his brother Phillip. With the exception of Robyn Lewis none of the other beneficiaries are eligible persons within the meaning of s 6. 3 The application today, as I understand it, is primarily concerned with the first plaintiff, that is, the widow of the deceased. She seeks that provision be made out of his estate to enable her to be placed in a position where any financial burden that she currently has is eased. She looks at two areas for relief. One relates to the expenses concerning Julia and the other relates to the mortgage that she has in respect of her home. Set out in her affidavit which is wrongly dated 27 March 1999, it is conceded that the date is 27 September 1999, are details of her income, her expenses, her assets and liabilities. 4 In paragraph 3 she sets out her average weekly expenses. They come to $695. Out of that sum she makes provision for Julia in the sum of $131. Also included is $120 for income tax. Paragraph two, subparagraph (a) refers to her average weekly wage and at that time it was given at $600 and I am informed that that is her net wage. Therefore, from her expenses must be taken $120 for income tax purposes. That figure of $600 on the evidence today is no longer the exact figure that she receives. 5 Currently her wage per fortnight varies between $700 and $1200. It depends on the shift she works and the nature of the work that she performs. The evidence is by way of example. If she does weekend shifts generally she would receive $30 per day more than she would receive for the equivalent shift Monday to Friday. When those figures are adjusted it gives the plaintiff on average, although I accept that it is subject to a fluctuation, a surplus in good weeks of perhaps $154.