Hardcastle v Perkuhn [1999] NSWSC 860

New South Wales Supreme Court CITATION : Hardcastle v Perkuhn [1999] NSWSC 860 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3673/98 HEARING DATE(S) : 24/05/99; 16/06/99; 09/08/99 JUDGMENT DATE : 9 August 1999

PARTIES : Colin Hardcastle v Sigrid Irene Hannelore Perkuhn - Estate of Cecile Pigorsch JUDGMENT OF : Master Macready at 1

COUNSEL : M.R. Pesman for the plaintiff J. Wilson for the defendant SOLICITORS : Messrs Lewis Ackman, Kiama, for the plaintiff Messrs Avern McIntyre for the defendant CATCHWORDS : Family Provision.; Application by a defacto partner of deceased. Substantial disposition of assets by defendant to defeat plaintiff's claim. Order made to file affidavit setting out defendant's property. CASES CITED : Singer & Berghouse (1994) 181 CLR 201 DECISION : Paragraph 59

1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

Monday 9 August 1999

3673/98 - COLIN HARDCASTLE -V- SIGRID IRENE HANNELORE PERKUHN - ESTATE OF CECILIE PIGORSCH

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Cecilie Pigorsch who died on 7 March 1998. The deceased was survived by her daughter, the defendant, and the plaintiff who alleges that he was living with the deceased as her husband on a bona fide domestic basis since February 1994. 2 The deceased made a number of wills. On 23 November 1994 she made a will under which she left her estate to her daughter. The plaintiff was not mentioned in that will. In her will of 24 June 1996, the deceased gave the plaintiff a life estate in her unit 4/16 Gilmore Street, Wollongong. She gave the residue of her estate, which included another unit, to her daughter, the defendant. 3 On 19 February 1998 she made her last will under which she gave her car to the plaintiff and the residue of her estate to the defendant, who was also appointed executor. The defendant did not take out probate of the will and the plaintiff obtained a grant of administration under s 41A of the Wills Probate and Administration Act for the purposes of making his application to the court. 4 At the date of death the estate of the deceased consisted of a motor vehicle worth $16,500 and an amount of $6000 in bank accounts. 5 In this matter there have been costs incurred both on the plaintiff's and defendant's part. The defendant's costs were estimated at $24,000 and the plaintiff's at $24,500. In order to give some background, it is worthwhile dealing with some of the history. 6 The deceased was born in Bavaria, Germany, in 1922 and the plaintiff was born in Manchester, England on 13 July 1940. The defendant's daughter was born in Germany on 5 January 1946 and apparently the deceased married Mr Pigorsch in Munich in 1948. 7 On 26 July 1944 the deceased, the defendant and Mr Pigorsch migrated from Germany to Australia and they first lived in Kreswick, Victoria. In 1955 the Pigorsch family moved to Ballarat. 8 In 1956 they moved to a house at West Dapto in New South Wales. 9 In 1969 the defendant married Wolfgang Peter Perkuhn, and it was in 1970 that the plaintiff migrated from the United Kingdom to Australia. He commenced employment at Port Kembla and lived in that area thereafter. 10 The deceased and Mr Pigorsch apparently in the early 1970s built a block of flats on some land at 16 Gilmore Street, Wollongong and retained a number of flats. 11 In 1977 the defendant, Mr Pigorsch and their children moved to Tingha in New South Wales. (Tingha is near Inverell, about 124 kilometres north of Armidale.) 12 In 1982 the plaintiff, who had been married, separated and he was divorced in 1983. 13 In September 1989 the deceased's husband died and several years later in 1992, the deceased sold one of the units, being unit number 3, in Gilmore Street, Wollongong, for about $93,000. That led to some trips overseas by the deceased and the defendant to visit relatives. 14 It was at the end of 1992 that the plaintiff says he first met the deceased. He says that by December 1993 a sexual relationship commenced and that in February 1994 he moved into 4/16 Gilmore Street and commenced a relationship which he described as a de facto relationship with the deceased. 15 After this time there were occasions when the defendant stayed with the deceased at Wollongong, such as December 1994. Similarly, her child Neil stayed there early in 1995, and in Easter 1995 the deceased and the plaintiff stayed with the defendant and her family in Tingha. 16 It was on 25 September 1995 that the plaintiff was injured in a motor vehicle accident which led to him being unable to earn any income as a taxi driver, an occupation he had followed up until then. 17 I have already dealt with the various wills made in 1994, 1996 and 1998. 18 There were occasions in 1996 when Steven, the defendant's son, stayed with the deceased and the plaintiff at Wollongong. 19 It was in September 1997 that the deceased and the plaintiff went to Europe for about six weeks. The plaintiff went to the United Kingdom and the deceased to Germany and apparently the plaintiff joined the deceased in Germany. 20 Towards the end of 1997 the deceased started to suffer medical problems. In due course, on 19 February 1998, she made her last will. 21 On 6 March 1998 the deceased transferred the remaining units which she had in 16 Gilmore Street, Wollongong. These were units 4 and 6 and they were transferred to the defendant for no consideration. Three days later, on 9 March 1998, the deceased died. 22 On 17 March 1998 the plaintiff was evicted from the unit by the defendant. She cut off the electricity and telephone and required him to immediately vacate it. This he did and went to live in a caravan. 23 On 25 August 1998 a Family Provision Act summons was filed in this matter and on 3 September 1998 a notice of motion for interim relief in respect of unit 4 was filed by the plaintiff. That unit, in fact, was sold in September 1998. Later, a further undertaking was given in respect of the sale of unit 6. That unit was sold in December 1998 in circumstances which I have already set out in an earlier judgment. I dealt with this aspect of the matter fairly fully in my judgment of 24 May 1999 and also repeat what I said there about the events and circumstances surrounding the sale of unit 6 and the breach by the defendant of the undertaking she had given to the parties. 24 The question of whether or not the plaintiff and the deceased were living together as husband and wife on a bona fide domestic basis must be determined in accordance with the principles recently referred to by the Court of Appeal in Light v. Anderson & Ors (1992) DFC 95120. They referred with approval to the decision of Kearney J in Simonis v. Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where his Honour in dealing with the expression in the Family Provision Act 1982 after reviewing the authorities said at p 685 the following: "I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept and therefore has to be approached by considering the expression as a whole and not in several parts. This approach, as adopted by Powell J, was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case (see 106). I consider that the factors referred to by Powell J while not being regarded as a complete test, serve the purpose adequately in the present case to determine the question of eligible person. The factors indicated by Powell J are as follows (at 459): '1. The duration of the relationship. 2. The nature and extent of the common residence. 3. Whether or not a sexual relationship existed. 4. The degree of financial interdependence and any arrangements for support, between or by the parties. 5. The ownership, use and acquisition of property. 6. The procreation of children. 7. The care and support of children. 8. The performance of household duties. 9. The degree of mutual commitment and mutual support. 10. Reputation and "public" aspects of the relationship.' His Honour also referred to the support to be gained for this approach from the report of the New South Wales Law Reform Commission concerning de facto relationships (LRC 36 (1983)). His Honour quoted the following passage in the report (at 459):