MARINIS v JEWELLER [2000] NSWCA 282

New South Wales Court of Appeal

CITATION : MARINIS v JEWELLER [2000] NSWCA 282 FILE NUMBER(S) : CA 40228/2000 HEARING DATE(S) : 9 October 2000 JUDGMENT DATE : 17 October 2000

PARTIES : Antonios MARINIS v John JEWELLER JUDGMENT OF : Mason P at 1; Giles JA at 1; Rolfe AJA at 1

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 4632/98 FILE NUMBER(S) : LOWER COURT Master McLaughlin JUDICIAL OFFICER :

COUNSEL : Appellant: J R Wilson Respondent: M A Gilmour SOLICITORS : Appellant: Slattery Thompson Respondent: Jeweller Peetz CATCHWORDS : Family Provision Act 1982 - de facto spouse - adequate provision ND DECISION : Orders given 9 October 2000; Reasons given 17 October 2000; Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40228/2000 SC 4632/98

MASON P GILES JA ROLFE AJA

17 October 2000

Antonios MARINIS v John JEWELLER

JUDGMENT 1 THE COURT: At the conclusion of the hearing on 9 October 2000 this appeal was dismissed with costs. Our reasons follow. 2 The appellant failed in a claim under the Family Provision Act 1982. 3 The deceased died in 1997 aged about 93. Following the expulsion of the Greeks from Smyrna (Izmir) she lived in Egypt, then in Greece, before moving to Australia in 1958. Her husband died in 1960 and she had no surviving close relatives. 4 Her will was made in 1965. She appointed the appellant her executor and gave him £500 absolutely plus £600 to expend in erecting an appropriate head stone. (In fact the appellant spent $8,000 for that purpose.) She gave the residue to her brother George with a gift over, in the event of his death, to his son and daughter. George died in 1979. 5 Accordingly, the bulk of the estate passed under the will to the deceased's niece and nephew. Their ties with the deceased were primarily familial because they have always lived in Greece. There were however visits to the deceased in Australia and contact was maintained through telephone and letter. The deceased sent money to her Greek relatives, visited them in 1975, and she was godmother to each. The nephew, Dimitrios Sclavis was born in 1940. He has a dependent wife and two children and he lives in Athens in circumstances that are hardly affluent. The niece, Alexandra Sclavis was born in 1944 and her present financial circumstances are extremely strained. 6 Probate of the will was granted to the appellant. When he instituted proceedings under the Family Provision Act 1982 the respondent was appointed to represent the interests of the principal beneficiaries. 7 The deceased's estate at trial (March 2000) included: An apartment at 10/136 Darlinghurst Road, Darlinghurst valued at $210,000; A half share with the appellant in an apartment in Athens, each share being presently valued at $85,000; Cash c$1500. 8 The respondent asserted that there are additional assets of value, retained by the appellant. As the Master pointed out in his judgment, proceedings under the Act are not the proper way to resolve such disputes. 9 The costs of a 4½ day trial were about $100,000. 10 In 1960 the appellant commenced living as a boarder in the deceased's apartment at 10/136 Darlinghurst Road. That is still his home. 11 The nature of the relationship between the appellant (born in 1935) and the considerably older deceased was and remains a hotly contested issue. The appellant claimed relief under the Act on the basis that he was an "eligible person" as the de facto spouse of the deceased at the time of death (par (a)) or alternatively as a partly dependant member of the deceased's household (par (d)). Master McLaughlin was satisfied that the plaintiff was the de facto spouse of the deceased at the time of her death and it was accordingly unnecessary to address par (d) of the definition of "eligible person". He was satisfied that for a period of 37 years the couple had maintained a joint domestic establishment at the deceased's apartment, that they had a sexual relationship, that there existed a very considerable degree of mutual commitment and mutual support between them, that they acquired together an investment property in Athens, and that throughout the latter part of the deceased's life she relied upon the appellant for all physical care and support. 12 Most of these facts and the conclusion that the appellant was an eligible applicant were challenged by notice of contention. It was unnecessary for those challenges to be resolved in the appeal. 13 The appellant's claim was dismissed because the Master was not satisfied that he had been left without adequate provision for his proper maintenance. Specifically, he rejected the appellant's submission that adequate provision required that unit 10 should be transferred absolutely to the appellant. 14 These were the ultimate conclusions which are challenged in this appeal. Subject to an argument concerning one asserted error of fact, the appellant accepts that the principles that govern appellate review of discretionary decisions apply (see Singer v Berghouse (1994) 181 CLR 201 at 212). 15 The appellant led no evidence as to his current living expenses. Rather, attention was concentrated upon his capital assets and, to a lesser degree, on the extent to which he had been enabled to accumulate them in consequence of living rent free in the deceased's unit from the early 1960s. 16 The appellant came to Australia in 1956 when aged 21. He entered the deceased's residence as a lodger in 1960. As indicated, the Master concluded that a sexual and de facto relationship commenced soon after, albeit that it was kept from the deceased's Greek relatives (for fairly obvious reasons). 17 The appellant was a fitter by trade. During his working life he had various jobs, including that of foreman in the canning department at Waverley Brewery. He took redundancy in 1983 (when aged about 48). The household had access to rental income and (from 1964 onwards) the deceased's pension. 18 In 1963 the appellant purchased an investment unit at Elizabeth Bay, subject to a mortgage. This was sold in 1979. In 1974 he purchased a property at Lewisham. The mortgage on this property was discharged in 1984 and the property, presently valued at $500,000 provides an income stream from rental. 19 In 1980 the appellant purchased Unit 9/136 Darlinghurst Road, Darlinghurst. It is immediately adjacent to the deceased's unit, similar in value to it (c$210,000) and generally similar in amenity. 20 At trial the appellant's principal assets were: Unit 9/136 Darlinghurst Road $210,000