Bujnowski v Public Trustee; Zacharczuk v Public Trustee; Zacharczuk v Public Trustee [1999] NSWSC 385

New South Wales Supreme Court CITATION : Bujnowski v Public Trustee; Zacharczuk v Public Trustee; Zacharczuk v Public Trustee [1999] NSWSC 385 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3223/97; 4213/97; 4537/98 HEARING DATE(S) : 26, 27 November 1998 JUDGMENT DATE : 29 April 1999

Waldermar Bujnowski (P) PARTIES : Kazimierz Zacharczuk (P) The Public Trustee (D) JUDGMENT OF : Master McLaughlin

Mr. Roger Marshall (P) COUNSEL : Mrs. Marie Bridger (P) Mr. John R. Wilson (D) Berryman Partners (P) SOLICITORS : Bilbie Dan Hickey (P) P. J. Whitehead (D) CATCHWORDS : Constructive trust asserted by de facto widower; Family Provision; Claims by de facto widower and adult son; Infant beneficiary (great-granddaughter of testator); Various property transactions by testator; Asserted contributions by each plaintiff to acquisition and improvement of various properties; Considerable financial and material assistance given by plaintiff to her adult son ACTS CITED : Family Provision Act 1982 CASES CITED : Hunter v Hunter (1987) 8 NSWLR 573 DECISION : See paragraphs 81, 82 and 83.

- 31 - SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER McLAUGHLIN

Thursday, 29 April 1999

3223 of 1997 WALDEMAR BUJNOWSKI -v- PUBLIC TRUSTEE 4213 of 1997 KAZIMIERZ ZACHARCZUK -v- PUBLIC TRUSTEE 4537 of 1998 KAZIMIERZ ZACHARCZUK -v- PUBLIC TRUSTEE

1 MASTER: By summons 3223 of 1997, filed on 15 July 1997, Waldemar Bujnowski claims, pursuant to section 7 of the Family Provision Act 1982, an order that provision be made for his maintenance and advancement in life out of the estate of his late mother, Paulina Bujnowska (to whom I shall refer as "the deceased"). By summons 4213 of 1997, filed on 30 September 1997, Kazimierz Zacharczuk claims, pursuant to section 7 of the Family Provision Act, an order that provision be made for his maintenance and advancement in life out of the estate of the deceased. 2 By statement of claim 4537 of 1998, filed on 5 November 1998 Kasimierz Zacharczuk seeks, essentially, a declaration that the Public Trustee, the defendant to that suit, as executor of the deceased, holds the assets of the estate of the deceased, after payment of debts and expenses, upon trust for the plaintiff absolutely, and a further declaration that the defendant holds the house property situate at and known as 4 Portland Place, New Lambton, and the house property situate at and known as 4 Kotara Place, Kotara, upon trust for the plaintiff absolutely, together with consequential orders. 3 On 20 November 1998 Austin J by consent made identical orders in each of the three proceedings. The effect of those orders was that each of the three proceedings be heard together. His Honour made certain consequential orders, including an order referring proceeding 4537 of 1998 to a Master for hearing. Although not so expressly ordered by His Honour, the hearing before me of the three matters proceeded upon the footing that the evidence in each matter should be treated, so far as was relevant, as evidence in each of the other two matters. 4 The deceased, who had been born in Poland in 1918 or 1919, died on 6 April 1996 (aged about seventy-seven). 5 The deceased had been married only once, in Poland. Of that marriage were born two children, the plaintiff Waldemar Bujnowski and Helen (Mrs Williamson). 6 It would appear that the deceased's husband joined the Polish Army to resist the German invasion, and that the deceased never saw or heard from him again. The deceased and her two children migrated to Australia in about 1949, having fled Poland to Germany at the end of the war. From 1958 until the time of her death (that is, for a period of 38 years) the deceased had lived in a de facto relationship with Kazimierz Zacharczuk. 7 The deceased left a will dated 25 August 1995, probate whereof was on 24 February 1997 granted to Waldemar Bujnowski, the executor named in such will. Subsequently, by deed made on 17 February 1998, that executor appointed the Public Trustee to be executor of the will of the deceased in his stead. 8 The deceased at the time of her death owned absolutely a house property situate at and known as 16 Kotara Place, Kotara, and was also the owner as to a one half share as tenant in common in a house property situate at and known as 4 Portland Place, New Lambton. The other one half share in that house property is held by the plaintiff Kazimierz Zacharczuk (to whom I shall hereinafter refer as "Kazimierz"). 9 The other assets in the estate of the deceased consisted of accounts with a bank and a building society, having a total value at the time of her death (according to the Inventory of Property) of about $71,000. 10 The Portland Place property had been the residence of the deceased and Kazimierz from the time of its acquisition by them in 1965, up to the death of the deceased in 1996. Kazimierz has continued to reside therein to the present time. 11 By her will the deceased gave to her daughter Helen Williamson the deceased's half interest in the Portland Place property (that half interest having an estimated value of $62,500); she gave the house property at Kotara Place to her great-granddaughter, Clarissa Mather (the daughter of Waldemar Bujnowski's daughter Sasha (or Sacha) Mather), who is an infant presently aged nine years (having been born on 12 October 1989). The estimated value of the Kotara Place property is $155,000. The deceased gave the residue of her estate to be divided between her son Waldemar and her de facto widower Kazimierz. 12 Apart from the foregoing items of real property, the assets of the estate presently consist of funds held by the Public Trustee in an amount of $53,709. (Since the date of the death of the deceased various amounts, totalling $12,500, have been paid for funeral expenses and repairs to the two properties.) From that amount of $53,709 must be deducted the Public Trustee's commission on unrealised realty in an amount $7,350. In addition, provision must be made for the payment of the costs of the defendant in the three separate proceedings, estimated to total $16,500. Further, provision must be made for the costs of either or both of the plaintiffs, in the event that such plaintiff or plaintiffs be successful in one or more of their several claims. 13 Upon the basis of the foregoing figures, it has been estimated on behalf of the plaintiff Kazimierz that there will remain in residue available for distribution an amount of $29,900. In consequence, therefore, under the terms of the will each of the present plaintiffs would receive from the estate of the deceased the sum of $14,950. 14 It was submitted on behalf of Kazimierz that the various real property transactions in which the deceased during her lifetime participated were conducted in such a manner, and by financial contributions made by him towards the original acquisition of a property at 125 Lambton Road, Lambton, purchased by the deceased in 1960, as to give rise to a constructive trust in favour of Kazimierz. 15 The purchase price of that Lambton Road property was £1,200, of which the sum of £300 was provided by Kazimierz (who had borrowed that sum from a friend), and the balance was financed by a mortgage from the Bank of New South Wales. Kazimierz repaid from his wages that amount of £300 which he had borrowed. The deceased was registered as the sole owner of that property, which was sold by her in 1965 for about £2,400. The property at 4 Portland Place, New Lambton was then purchased for £1,800. The deposit on that purchase was paid from the proceeds of sale from the Lambton Road property, the balance being provided by way of mortgage finance from the Bank of New South Wales. 16 According to Kazimierz, he repaid also the mortgage loan from the Bank of New South Wales in respect to the Lambton Road purchase. He also said that he personally effected many improvements and renovations to each of the Lambton Road and Portland Place residences (each of which, at the time of acquisition, was in a state of considerable dereliction), and, in due course, to each of the properties subsequently purchased by the deceased. 17 It was submitted on behalf of Kazimierz that there had ultimately arisen a constructive trust over the Portland Place property (indeed it was submitted that such a constructive trust extended over the entirety of the real property owned by the deceased) in favour of Kazimierz. 18 It is appropriate, therefore, that I should proceed to a determination of the claim of Kazimierz in respect to such a constructive trust, before considering the two claims under the Family Provision Act. 19 It will be appreciated that if Kazimierz is successful in his suit for a declaration of a constructive trust, then the estate will consist of no more than funds totalling a little less than $30,000. Counsel for Kazimierz adopted the view that if Kazimierz were successful in his suit for such a declaration of trust, then it would not be necessary for him to proceed with his claim for provision under the Family Provision Act. 20 During her lifetime the deceased participated in a number of real property transactions, either alone, or conjointly with either her son Waldemar or her de facto spouse Kazimierz. It would appear that the deceased attended to all the legal and financial aspects associated with those transactions. (Kazimierz did not even conduct a bank account until about May 1991, when he commenced to receive the age pension. To that time the deceased looked after the entirety of their financial affairs.) It is appropriate here to record that Kazimierz does not read English, and that his evidence (both by affidavit and oral) was given through an interpreter. 21 The evidence established the following real property transactions by the deceased. 22 In 1960, as has already been recorded, the house property at 125 Lambton Road, Lambton, was purchased in the name of the deceased; and after the sale of that property in 1965 the property at 4 Portland Place, New Lambton, was purchased in the names of the deceased and Kazimierz as tenants in common in equal shares. 23 In about 1965 the deceased purchased a property at 29 Pentland Avenue, Punchbowl, for her son Waldemar for £3,500. During the four years he lived there Waldemar was responsible for the mortgage payments. After Waldemar's marriage broke down in about 1969 the deceased rented out that property for several years before selling it (for, according to Waldemar, about $65,000) in about 1972 or 1973. In that latter year Waldemar and his then wife Lorraine purchased as joint tenants a property at Lot 2, Avondale Street, New Lambton. The deceased provided some funds to Waldemar to assist in that purchase. 24 In about October 1974 the deceased and Kazimierz purchased, as joint tenants, vacant land at Lot 48, Westholme Street, Rutherford, for about $6,000. That land was sold about eighteen months later for about $12,000. 25 In 1974 Waldemar and his wife purchased Lot 3, Avery Street, Rutherford, as joint tenants. Again, the deceased gave assistance towards that purchase, by providing mortgage finance. Waldemar and his wife sold Lot 2, Avondale Street, New Lambton in 1978. In the following year, 1979, Lorraine transferred to Waldemar her interest in Lot 3, Avery Street, Rutherford. He subsequently sold that property in 1981, receiving $10,000. 26 In 1979 or 1980 the deceased purchased a property at St. James Road, New Lambton, for $14,000. That property was sold about eighteen months later for $41,000 (after, according to Kazimierz, he had performed substantial renovations to it). 27 In about 1979 Kazimierz purchased a property at Anzac Street, Maitland, for $10,000, which he sold two years later for $34,000. 28 In 1981 the deceased and Kazimierz sold the property at Lot 48, Westholme Street, Rutherford, for $12,000. In the same year Waldemar sold the Avery Street property. 29 Also in 1981, in September of that year, the deceased purchased a property at 125 Kings Road, New Lambton, for $45,000. Once again, Kazimierz said that he performed considerable renovations and restorational work to that property, especially after it had been damaged in, it was said, December 1989 in the Newcastle earthquake. The property was sold in early 1990 for $95,000. 30 In 1984 the deceased purchased the Kotara Place property for $61,000. She sold the Kings Road property for about $95,000 in 1990. 31 Kazimierz said that he had assumed that each of the Lambton Road and the Portland Place properties had been purchased in the joint names of the deceased and himself, and that it was only after the deceased's death that he became aware that they had been purchased in the name of the deceased alone. 32 It would appear that in the mid-1950s the deceased owned and lived in a house property at 109 Victoria Street, Lewisham (which she had purchased in December 1955 for £2,800, that purchase, having been financed by two separate loans, which were repaid in 1958, at about the time when the property was sold, for £3,300). At that time her son Waldemar was living with her. He was employed as a telegram boy, earning £12 7s 6p a fortnight, of which he gave his mother £10. 33 The deceased, whilst she was residing at Lewisham, was in employment, working, sequentially, for Huttons Meats, AWA at Ashfield, and a clothing factory (where she was employed as a machinist). 34 In about 1958 the deceased moved to Newcastle. After several years in Newcastle the deceased resumed employment, in early 1961. Firstly, she was working, part-time, as a cleaner. She later became a full-time cleaner at the Newcastle Court House, a position which she held at least until she attained the age of 65 (which would have been in about 1983). (Waldemar's former wife, Mrs Lorraine Mather, said that the deceased held that position from about 1970 until at least 1990.) 35 In 1958 Kazimierz joined the deceased in Newcastle, residing with her, firstly, in rented accommodation at 119 Cardiff Road, Wallsend, They continued to live together in a de facto relationship from then until her death. 36 When she reached the age of about seventy (in about 1988) the deceased eventually received a part-pension from the Department of Social Security. The precise nature of that pension has not emerged from the evidence. 37 There was admitted into evidence (as Exhibit A) a notice to admit facts, addressed to Kazimierz, and the answers of Kazimierz to such notice. During the course of the hearing Kazimierz admitted item 4 in that notice (relating to the sale price of the Lewisham property, which item he had by his answer stated that he did not know and could not admit). 38 It was submitted on behalf of Kazimierz that the deceased could not have purchased the Lambton property from her own funds. That is probably so. However, that fact does not, of itself, establish the existence of a constructive trust in favour of Kazimierz over the entirety of the assets of the deceased, or, indeed, over even the remaining half of the Portland Place property. 39 It must be appreciated that it was only the Lambton property and the Portland Place property which were purchased subject to any mortgages. All the other properties purchased by the deceased (either in her own name alone or in the name of herself conjointly with either Kazimierz or Waldemar), were unencumbered. 40 Further, the submissions on behalf of Kazimierz failed to acknowledge the following matters: (a) the benefit which the deceased received from the sale of the Lewisham property, of which she had been the owner before she met Kazimierz; (b) the contribution which the deceased made to the purchase of the various properties from the income received by her from her various employments; (c) the contribution which the deceased made in locating and acquiring the various properties; (d) the contribution which the deceased made in the renovation of the various properties. 41 Further, the evidence of Kazimierz fails to explain why some properties were purchased in joint names, one property in the name of Kazimierz alone, and other properties in the name of the deceased alone. 42 It is also appropriate to look to the circumstances of the acquisition of the Kotara property, which is one of the two properties in which the deceased held on interest at the time of her death. Kazimierz acknowledged that that property was purchased from the proceeds of sale of the Punchbowl property. The Punchbowl property, in its term, was purchased in the joint names of the deceased and her son Waldemar. The deceased paid the deposit on that property. The evidence discloses that there were mortgages on the property. According to the evidence of Waldemar he paid the mortgages on that property whilst it was occupied by him. After he ceased to occupy the property and transferred his interest therein to the deceased, she rented out the property and paid the mortgage from such rental income. 43 The source of the deposit money for the Punchbowl property is not disclosed. However, what does emerge from the information available concerning the acquisition of and funding of that property is that Kazimierz made no contribution to the funding of that purchase. In those circumstances it can be said positively that the deceased and Waldemar had a substantial interest in the Punchbowl property, even in they did not have the entire interest in that property. There is no reliable evidence upon which it can be said that Kazimierz had any interest in the Punchbowl property. 44 There is no evidence which supports the existence of any trust in respect to the property dealings between Kazimierz and the deceased. There are no facts from which it can be said that there was some arrangement pursuant to which it was acknowledged or understood that a trust would arise. There was no evidence of any conversations (either before or after the purchase of any of the properties) about any such arrangements having been made between the deceased and Kazimierz. 45 From the foregoing evidentiary matters, I am not satisfied that Kazimierz has established any interest in the Kotara property sufficient to substantiate his claim that there has arisen in his favour a constructive trust in respect of that property. 46 Accordingly, the suit of Kazimierz, seeking a declaration of trust, must be dismissed. 47 In those circumstances, therefore, it is necessary for me now to proceed to a consideration of the two claims under the Family Provision Act. 48 Kazimierz, as the de facto spouse of the deceased, is an eligible person within paragraph (a) of the definition of that phrase contained in section 6 (1) of the Family Provision Act. He thus has the standing to make his present claim for provision under that Act. Waldemar also, as a son of the deceased, is an eligible person, within paragraph (b) of the definition. He thus also has the standing to make his present claim. The only other eligible person in relation to the deceased is her daugher Helen. Her great-granddaughter Clarissa is included in the executor's affidavit as a person who is or may be an eligible person. However, I am not satisfied that she is such, and no submission to that effect was made by the defendant. 49 Kazimierz was born on 5 May 1926 in Poland, and is presently seventy-two years of age. He came to Australia in 1950 from Germany (whither he had been transported from Poland in 1942, at the age of sixteen, to work for the German war effort). He was employed as a labourer, firstly for BHP in Newcastle for four years, then for the Newcastle Abattoirs for about twenty-five or twenty-six years, and finally for the Maitland Abattoirs for seven years, until he retired in about 1987, when he was aged about 61. 50 When the Newcastle Abattoirs closed down Kazimierz received severance moneys of about $10,000. He used those moneys to purchase a property at Maitland. That was an old weatherboard house which was in a state of considerable dereliction, having been subject to the Maitland floods. About two years after Kazimierz had acquired it, the Department of Main Roads purchased that property from him for $34,000. Kazimierz invested those moneys with the Government Insurance Office, and subsequently with the Newcastle Permanent Building Society. Since that time he has had recourse to those moneys to meet living expenses, legal costs, car repairs and insurance. The amount of his investment from that source is now about $19,000. 51 At the present time the assets of Kazimierz are as follows: Newcastle Permanent Building Society Savings Account - $19,000 (approximately). Mitsubishi Sigma motor vehicle - $2,500 (estimated). One-half interest in 4 Portland Place New Lambton - $62,500. 52 I have already recorded that since the death of the deceased Kazimierz has continued to live in the Portland Place property, which has been his home for the past thirty-three years. He has effected considerable repairs and improvements to that house property, including the construction of extensive vegetable and flower gardens, to the tending of which Kazimierz has devoted a substantial amount of time and from which he derives great enjoyment. 53 It will be appreciated that if the precise terms of the will of the deceased take effect, it will be necessary for the Portland Place property to be sold. Although Kazimierz will be entitled to one half of the net proceeds of such sale, that entitlement will result in his receiving only the sum of about $62,500 (or perhaps a little less, after the costs and expenses of the sale have been deducted from the sale price). 54 I consider that Kazimierz is entitled to security and flexibility in his accommodation. It would, in my view, be quite improper for him to be dispossessed of the property which has been his home for the past thirty-three years, and to the improvement of which he has devoted considerable care and attention. It should also here be noted that Helen Williamson, the daughter of the deceased, who under the terms of her mother's will receives the deceased's half interest in the Portland Place property now (as represented on her behalf by the Public Trustee) does not oppose that half interest being awarded to Kazimierz. There is a close and affectionate relationship between Kazimierz and Helen and her family (he treats Helen as his daughter and her children as his grandchildren). If Kazimierz, although presently in good health and able to drive his own motor car, eventually ceases to be able to maintain his independent lifestyle, he has expressed a desire to live near Helen, who resides at Maryong, an outer suburb of Sydney. 55 I propose, therefore, to order that Kazimierz receive the deceased's half interest in Portland Place, so that he will own the entirety of that property absolutely. 56 Kazimierz expressed a desire that, in addition, he should receive from the estate some further benefit, to allow him, for example, to make a protracted visit to his native Poland, which he has not seen since he was aged sixteen. The only sources from which any such further benefit might come are the interest of Waldemar in residue and the Kotara Place property. For the reasons which emerge later in this judgment I am not prepared to interfere with the testamentary dispositions of the deceased in relation to those assets. In any event, the interest of Kazimierz in the residue, together with his own other resources, will enable him, if he wishes, to make the visit to Poland. 57 The deceased's son Waldemar is now aged 58, having been born on 4 December 1940. 58 He was married in 1964 to Colleen Madden (from whom he was divorced in November 1969), and subsequently to Lorraine, now Mrs Mather (from whom he was divorced in the mid-1970s). He has two adult children, and an adult stepson. 59 In his early childhood Waldemar had a number of operations on his right leg, which resulted in its being half an inch shorter than his left leg. This condition now causes him pain in his left leg and back. He suffers from high blood pressure, high cholesterol and gout, for which various conditions he takes medication. In addition, Waldemar suffered injuries to his right leg and hip whilst at work, and suffers from arthritis in his hand, shoulder, back and knees. He takes medication for pain relief. 60 When Waldemar in 1970 moved to Newcastle permanently he resided for some time with his mother and Kazimierz at Portland Place. Since about 1987 Waldemar has not worked, and he has been in receipt of an invalid pension, which is presently in an amount of $354.82 a fortnight. It is unlikely that he will ever be able to resume employment. 61 The present assets of Waldemar are as follows: Rollover deposit with Commonwealth Bank - $62,000 Ford motor car (purchased 1997 for $5,000) - $3,000 House contents - $5,000 62 The evidence discloses that during her lifetime the deceased gave very considerable financial and material assistance to Waldemar. That assistance included the provision of houses, payment of divorce costs, provision of bail money, payment in respect of a motor vehicle (apparently, to prevent repossession). That fact of such assistance, of itself, is not determinative of his present claim (see Hunter v Hunter (1987) 8 NSWLR 573). 63 Waldemar has an investment of $62,000. He has resided in the Kotara Place property since December 1989, during which period he has paid no rent or occupation fee. He treats that property as if it were his own. At various times members of his family (including each of his daughters, his granddaughter Clarissa, and his adult stepson) have resided there with him. Waldemar stated in his evidence that he had been responsible for various repairs and improvements being carried out to the Kotara Place property. However, that assertion was denied by his sister Helen. 64 It will be appreciated that by her will the deceased, although she did not provide accommodation for him, attempted to enable Waldemar, by giving him a share of residue, to go some way to acquiring his own accommodation. That share of residue, about $30,000, together with his own savings of $62,000, would assist in enabling him to acquire some modest residence in the Newcastle district, either by purchase or by renting. 65 I do not consider that Waldemar has established any entitlement to be awarded a residence by his mother. I do not consider that he is entitled to receive the Kotara Place property absolutely, which is what he has claimed in the present proceedings. 66 In approaching the claim of Waldemar, it is necessary for the Court to consider any competing claims upon the testamentary bounty of the deceased. The competing claims are those of the deceased's daughter Helen (who is the only other eligible person apart from Waldemar and Kazimierz), of Kazimierz, and of the deceased's great-granddaughter, Clarissa Mather. 67 I have already recorded that Helen Williamson does not oppose the interest given to her under the will of her mother (being the deceased's half interest in Portland Place) being awarded to Kazimierz. Helen makes no other claim against the estate of the deceased. Accordingly, the only competing claims which the Court must consider are those of his own granddaughter, Clarissa (the great-granddaughter of the deceased), to the Kotara Place property, and of Kazimierz, who under the will shares the residue with Waldemar. 68 The significance of those competing claims is that they may have the effect of reducing, or even extinguishing, any order for provision an entitlement to which the plaintiff Waldemar otherwise might have established. I have already expressed the view that I do not consider that Waldemar has established an entitlement to any interest in the Kotara Place property. Accordingly, it is not essential for me to proceed to a consideration of the competing claim of Clarissa to that property. Nevertheless, in the event that I am wrong in my conclusion that Waldemar has not established an entitlement to the Kotara Place property, then it is appropriate that I should express my views concerning the competing claim of Clarissa. 69 For most of her life Clarissa has been cared for by her grandmother, Lorraine Mather, the former wife of Waldemar. The reason for this is that Clarissa's mother Sasha Mather has suffered drug addiction. Clarissa has lived with Mrs Mather and her present husband since shortly after her birth. In mid-1997 Mr and Mrs Mather obtained, with the support of the Department of Community Serices, a custody order for Clarissa for a period two years, at the end of which period they expect that they will receive permanent custody of Clarissa until she attains the age of sixteen. 70 Clarissa's mother makes no contribution to her daughter's maintenance or support. However, since November 1997 Mrs Mather has been receiving an allowance of $158 a fortnight for Clarissa from the Department of Youth and Community Services. Before then Mrs Mather received only child allowance of $23 a fortnight. 71 Apart from her interest under the will of her great-grandmother Clarissa has no assets. She requires dental treatment (being braces for her teeth) at a cost of about $3,500. In addition, she suffers from a problem with one of her kidneys, which will probably require surgical intervention. 72 The evidence discloses that there was a very close and affectionate relationship between the deceased and Clarissa. The deceased spent a considerable amount of time with her great-granddaughter, taking her out for the whole day usually about twice a month, on a Saturday. On occasion Clarissa would stay overnight at the deceased's residence. The deceased also made clothes for Clarissa. 73 It is apparent that the deceased recognised an obligation to make some provision for Clarissa, who has had a most unfortunate start to her life, having been, for practical purposes, abandoned by her natural parents, and whose grandparents (Waldemar's daughter and her husband) are attempting to provide the role of parents for her. The deceased clearly observed a need for assistance in favour of Clarissa, and she has attempted to do that by her testamentary gift of the Kotara Place property to Clarissa. 74 I would be most reluctant to interfere with the gift by the will of the deceased of the Kotara Place property to Clarissa. Accordingly, even if (contrary to the conclusion which I have already expressed) Waldemar were to have established an entitlement to an interest in the Kotara Place property (be it to receive that property absolutely, or be it some lesser interest in that property), then, I would consider the competing interest of Clarissa to be such as either to extinguish entirely the entitlement of Waldemar to that property, or, at the very least, to reduce that interest to an entitlement for his life. 75 The only other fund from which Waldemar might be entitled to receive some benefit out of the estate of the deceased would be the interest of Kazimierz in residue. Having regard to the age and the financial and material circumstances of Kazimierz, I would not be disposed to encroach upon his interest in that residue, in order to give an additional benefit to Waldemar out of the estate of the deceased. 76 It follows, therefore, that I proposed to dismiss the claim of the plaintiff Waldemar Bujnowski. I propose to award to the plaintiff Kazimierz Zacharczuk the half interest of the deceased in the New Lambton property. I have already expressed my conclusion that the claim of Kazimierz for a declaration of trust will be dismissed. 77 I have not heard any submissions as to costs. 78 Although Kazimierz was not successful in his claim for a declaration of trust, he has been substantially successful in his claim under the Family Provision Act. Waldemar has been unsuccessful in his claim. The defendant executor will be entitled to his costs in each set of proceedings. 79 Accordingly, unless within seven days of the date hereof any party arranges with my Associate for the matter to be listed for argument as to costs, I make the following orders: 80 3223 of 1997 Waldemar Bujnowski v The Public Trustee 1. I order that the summons be dismissed. 2. I order that the plaintiff pay the costs of the defendant, such costs to be on the party and party basis. 3. I order that the defendant be entitled to retain from the estate of the late Paulina Bujnowska ("the deceased") his costs on the indemnity basis, to the extent that he does not recover such costs from the plaintiff. 81 4213 of 1997 Kasimierz Zacharczuk v The Public Trustee 1. I order that the defendant hold the interest of the late Paulina Bujnowska ("the deceased") in the property situate at and known as 4 Portland Place, New Lambton, for the plaintiff absolutely. 2. 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. 82 4537 of 1998 Kasimierz Zacharczuk v The Public Trustee 1. I order that the suit be dismissed. 2. I order that the defendant be entitled to retain his costs on the indemnity basis out of the estate the deceased, and otherwise I make no order as to costs. 83 In each matter I order that the exhibits may be returned. I certify that this and the preceding pages are a true copy of the reasons for judgment of Master McLaughlin