New South Wales Supreme Court CITATION : BLACKLEY & ANOR V PROCTOR [2001] NSWSC 537 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 1919/2000 HEARING DATE(S) : 25/06/2001 JUDGMENT DATE : 28 June 2001 PARTIES : Lisa Maree BLACKLEY & Stephen John BLACKLEY v Margaret Jane PROCTOR JUDGMENT OF : Acting Master Berecry at 1 COUNSEL : Mr M. Willmott - plaintiffs Mr D. Marr - defendant SOLICITORS : Eric Butler - plaintiffs Perry & Smith - defendant CATCHWORDS : Family Provision - Application by carer - Intestacy, lifestyle of carer and deceased - Dependency can be mutual - Member of household - estranged relationship of deceased and sister. LEGISLATION CITED : The Family Provision Act 1982 Petrohilas v Hunter (1991) 25 NSWLR at 343. Maloney v Goodwin, unreported decision of Needham J. Munro v Lake, decision of Cohen J. Corcoran v Bizannes, decision of Needham J CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 at 681. Churton v Christian (1988) 13 NSWLR 241 at 252 Brown v Faggoter, 13 November 1998 Bondy v Vavros, Young J, unreported 29 August 1988. Howarth v Reid, Powell J, 15 April 1991. DECISION : 1. There be paid out of the Estate to the second plaintiff an amount of $20,000; 2. The second plaintiff be paid his costs out of the Estate on the party/party basis; 3. The defendant's costs be paid out of the Estate on the indemnity basis. THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ACTING MASTER BERECRY THURSDAY, 28 JUNE, 2001 1919/2000 - Lisa Maree BLACKLEY & STEPHEN JOHN BLACKLEY v Margaret Jane PROCTOR JUDGMENT 1 MASTER: On the 30 March 2000 the plaintiff filed a Summons seeking an order that provision be made out of the Estate of the late Bruce Vickery pursuant to s 7 of the Family Provision Act. At the outset counsel for the plaintiffs indicated that so far as the first plaintiff is concerned, that is Lisa Maree Blackley the proceedings would be abandoned and therefore the matter would continue as between the second plaintiff, Stephen John Blackley and the defendant. Therefore it seems appropriate to formally conclude the proceedings as between the first plaintiff, Lisa Maree Blackley and the defendant. Therefore the proceedings as between Lisa Maree Blackley and the defendant are dismissed. 2 The plaintiff Stephen John Blackley, hereafter I will refer to him as the second plaintiff was not a relation on the deceased. The application is brought on the basis that the second plaintiff is an eligible person within the meaning of s 6(1)(d) of the Family Provision Act. The application was hotly contested. For the second plaintiff to establish that he has standing to bring the proceedings he must establish two things at the outset. Firstly that at any particular time he was wholly or partly dependent on the deceased and secondly that he was a member of the household of which the deceased person was a member. It was submitted on behalf of the defendant that the second plaintiff was not a person who has sufficient standing to bring these proceedings. In particular the defendant argued that the second plaintiff was neither a member of the deceased's household nor was he dependent on the deceased. It was submitted that the second plaintiff was no more than a boarder who obtained free lodging. 3 The relationship between the second plaintiff and the deceased came about through friendship. The deceased was quite a bit older than the second plaintiff. In fact the age difference was one more akin to a parent and a child. The second plaintiff was born on 7 September 1966. He lived with his parents in the Chester Hill area until he was twenty-four when his parents moved to the South Coast. The second plaintiff met the deceased in March 1981. At that stage the second plaintiff was approximately sixteen years old and the deceased was about forty-nine. They both met at the Chester Hill Hotel and got to know each other through a common interest, playing pool. Over time the friendship developed. There is evidence that the deceased attended the second plaintiff's eighteenth and twenty-first birthday parties. At the time the second plaintiff's parents decided to move to the South Coast the second plaintiff had a discussion with the deceased. As a result of that discussion according to the second plaintiff's evidence the deceased invited him to move into his home on the proviso that he kept him company, helped around the house and he, the deceased had somebody to talk to. The second plaintiff agreed with this. 4 There is some dispute about when the second plaintiff moved into the deceased's premises. The second plaintiff's affidavit evidence puts the period sometime in 1991. In evidence the second plaintiff was not sure precisely when he moved in with the deceased and the independent evidence seems to suggest that he moved into the deceased's premises sometime in 1993. The exact terms of the second plaintiff moving in with the deceased are not clear. The second plaintiff's evidence is that the deceased offered him accommodation and there would be no rent payable. All that he was required to do was to keep the deceased company and to help around the house a bit and to do some of the housework. It was suggested during cross-examination that more was sought by the deceased in respect of the accommodation. It was suggested that the basis for the second plaintiff moving in with the deceased was that in lieu of rent the second plaintiff would care for the deceased and would maintain and carry out repairs on the property. The second plaintiff's evidence was that there was never a requirement that he perform maintenance and renovations around the property. However, he was prepared and in fact did assist with some work around the house. 5 On behalf of the defendant it was said that neither the second plaintiff nor his wife were a part of the same household as the deceased and further that they were not carers of the deceased. It was submitted that they were merely lodgers of the deceased and in fact they gained benefits from that relationship which amounted to them using the deceased to their own advantage. 6 The deceased was born on 21 July 1934. He never married and lived at home with his parents until his father died sometime in the 1980's. It would seem that for many years he was addicted to alcohol. This appears to have been part of the rift between the deceased and his sister, the defendant. There is included in the files subpoenaed from the Protective Commissioner evidence that part of the estrangement between the deceased and his sister was his drinking problem. It would appear that during the time that the second plaintiff and the deceased were friends that it was obvious to the second plaintiff that the deceased had a drinking problem. Contained in Exhibit "D" are reports from officers of the Protective Commission. Those reports contain references to the deceased's alcohol problem. Reference is made in terms such as "client is said to suffer from alcohol brain damage and dementia". That was the submission made on 29 August 1999. In fact on 21 January 1993 a Financial Management Order was made by the Guardianship Board and the Public Guardian was appointed for a period of twelve months. In 1994 that appointment was extended for a further eighteen months. However, on 18 July 1995 the Board discharged the deceased from guardianship. Nevertheless his assets continued to be managed by the Protective Commission until he died. Therefore, it is established that the deceased was from at least early 1993 incapable of managing his own affairs. 7 The second plaintiff's evidence is that after he moved in with the deceased he spoke to him on several occasions about his heavy drinking. He tried to convince the deceased that he shouldn't be drinking rum as well as beer. He took steps to try to reduce the deceased's alcohol intake by hiding spirits or by adulterating the contents of bottles. It would appear that these good intentions however resulted in little change from the deceased's dependency on alcohol. 8 The second plaintiff's evidence is that over a period of time the deceased became abusive and was prone to emotional outbursts. He lost all interest in doing things around the house and refused to allow the second plaintiff to move any of the rubbish from either inside or outside the property. Earlier reports, see Exhibit "F", establish that as early as October 1992 the deceased had been assessed as having alcohol related brain damage. In or about April 1999 after a particularly heavy drinking binge the deceased by admitted to hospital. From there he was moved to a nursing home on a permanent basis. He thereafter remained in the nursing home until his death on 11 October 1999. 9 There were tendered a series of photographs by both the plaintiff and the defendant to show the condition of the property being 30 Bambridge Street, Chester Hill. It is clear from the photographs that during the period the second plaintiff resided with the deceased that the property was in an unkempt state. Photographs were taken during the second plaintiff's occupancy of the premises and shortly after he and his wife vacated the premises. In both sets of photographs the condition of the property and the unkempt state are not that much different. It is clearly apparent that throughout at least half the period of time that the second plaintiff occupied the premises that it was in a derelict condition. The lawns were overgrown. The premises hadn't been painted for a long time, both inside and out. Touch up work seemed to have been done to damaged ceilings. There was litter throughout the house and in the carport area. Photographs show discarded beer cans, milk bottles, items of clothing, furniture both broken and unbroken scattered throughout the house. Some rooms it appeared that there were no floor coverings. There was one photograph which seemed to indicate that at least on one occasion the second plaintiff would write notes to his wife on the walls of the house. It is difficult to understand how anybody could be regarded as the carer of another person after viewing the photographs and seeing the squalid conditions that the parties lived in. However, whilst the pictures may tell a story it is not necessarily the whole story. 10 The second plaintiff struck me as a person who is honest but does not have the most robust of intellect. His wife, whom I regarded as having been very candid in her answers in cross-examination is also not of the most robust intellect. The two of them, to my observation probably struggle to cope with the ordinary day to day trials and tribulations that most adults are able to cope with. It seemed to me that the plaintiffs attempted to maintain the house to a standard that both they and the deceased were comfortable with. That was a standard well below what would be regarded as acceptable. However, the second plaintiff and the deceased lived together in apparent harmony for a period of six years. In 1996 the second plaintiff married the first plaintiff, the first plaintiff was welcomed into the home by the deceased. It would appear to me that would indicate a reasonably happy relationship between the second plaintiff and the deceased. 11 The evidence of both plaintiffs was that they attempted to keep the place clean and tidy and to look after it as best they could. I accept that as best they could however falls a long way short of what would be regarded by the general community as an acceptable standard, but nevertheless I think it needs to be looked at in the context of their ability to perceive and to perform those functions and the lifestyle that the deceased wanted to live. Their is evidence for instance that the deceased insisted on recycling rubbish. However, the deceased never got around to recycling much of the rubbish. The level of competency of the plaintiffs can be gauged from the second plaintiff's affidavit of 25 May 2001, paragraph 2(3): "When I came home from work in the evenings I had to take care of my wife and son. Taking out the rubbish was not my first priority". It would appear from the photographs that that priority was either well down the list of priorities or non-existent. 12 The plaintiff's evidence is that they purchased food for both the deceased and themselves. They cooked meals for the deceased and generally did their best to look after him. The evidence of Lisa Maree Blackley was that from time to time they purchased clothing for him, purchased medication, took him to the hairdresser and towards the end of his life attended to his banking. She also gave evidence of his state when he was drunk. Often he would be incontinent. She would have to wash sheets and clean him up. Often he commenced tasks but never completed them leaving them to be finished by her. Her evidence is that by 1997 she had begun to cook for him, take him to the shops and to appointments and on outings. When the evening meal was cooked, both she, the second plaintiff and the deceased ate together. There is evidence of a holiday with the deceased. However, the second plaintiff was unable to give any details about the holiday. 13 The second plaintiff makes the application on the basis that he is an eligible person pursuant to s 6(1)(d). Dependency and Member of the Household 14 It was submitted on behalf of the defendant that there was no dependence on the deceased by the plaintiffs because during most of the time that the second plaintiff resided with the deceased he was in employment. Reference was made to subpoenaed documents and exhibits which show that in recent times whilst the second plaintiff's nett income has been approximately $420 per week, his income in fact fluctuates because of overtime and there have been incidences where he has received sums far greater than $420. There is evidence for example of nett income of $519, annual leave $829. In evidence the second plaintiff admitted in cross-examination that he was employed during the course of the relationship with the deceased. It was submitted therefore that the second plaintiff was earning income and did not rely on the deceased during his period of occupancy of the deceased's premises and further that as he is now in employment and earning a minimum of $420 per week that he has no need that should be met out of the estate. 15 The second plaintiff submits that the fact that he received rent free accommodation is an indication that there was a need and a dependency. The dependency was in the form of the accommodation provided by the deceased. In Petrohilas v Hunter (1991) 25 NSWLR at 343 Hope JA said at page 346: "The word dependent is an ordinary English word and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependence is a financial one. In the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for other things but I do not think that the word as used in the statute or otherwise has this very limited meaning." 16 In this case the evidence is that initially from 1996 both plaintiffs were provided with rent free accommodation by the deceased. It seems at least that the condition of occupancy was that the plaintiffs would provide companionship, do some cleaning, and assist the deceased around the property. The plaintiffs enjoyed the benefit of the rent free accommodation. They in turn looked after the deceased. They depended on the deceased for their accommodation. He in turn depended on them to some degree as carers. The fact that the deceased was also dependent on the plaintiffs does not change or reduce the nature of the dependence that they had on the deceased. 17 In Maloney v Goodwin unreported decision of Needham J, his Honour said that "a mere boarder was not a member of the household but if he supports the deceased like a son might and then that person qualifies as a member of the household." In this particular case there is evidence to which I have already referred of the support that both plaintiffs, but in particular the second plaintiff gave to the deceased during the course of the second plaintiff's occupancy of the premises. In Munro v Lake Cohen J said that "the concept of household denotes a degree of continuity and permanency of mutual living arrangements." Once again in the present case the second plaintiff and the deceased resided together for a period of some six years. They shared meals. The second plaintiff worked at the direction of the deceased in the back yard where a vegetable patch was created. Each had separate bedrooms. They shared meals together and when the second plaintiff married the first plaintiff the mutual living arrangements continued. In Corcoran v Bizannes Needham J said that "a carer is partly dependent because of the free board". That is a case which on those facts is precisely the same as the present case. Therefore in my view the second plaintiff qualifies as an eligible person under s 6(1)(d) in that he was dependent on the deceased and was a member of the deceased's household. Factors Warranting 18 However, before consideration can be given to provision for the second plaintiff there must be compliance with s 9. It is necessary under s 9(1) of the Family Provision Act that the Court shall first determine whether there are factors warranting the making of the application. This expression has been dealt with by courts on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J described that expression in the following terms: "Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'" 19 In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement, Priestley JA at page 252, after setting out and approving the statement, added: "To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition." These principles have been applied at first instance for many years. 20 There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter, a decision given on 13 November 1998. The main judgment was given by Fitzgerald AJA, who suggests all circumstances of this case should be taken into account including the fact that an application might be warranted if the application has reasonable prospects of success. This seems to be a somewhat different and perhaps easier test then that which the Court of Appeal approved in Churton v Christian. 21 It is submitted by the defendant that the plaintiffs used the deceased and his property as a mere convenience. That they in fact were not carers at all and were incapable of caring for the deceased. The evidence of the plaintiffs of course is that they were his carers and that they did perform the role of carer. I have already referred to instances earlier in the judgment. Exhibit "E contains a number of memos of the Protective Commissioner. There is a history contained in the reports on that file. Report dated 10 December 1993, writer a Richard Gliva reports inter alia: "Bruce's bedroom is somewhat cluttered with barely enough room to move around the bed and the doorway and although not absolutely spotless is reasonable for the type of lifestyle he has." It then goes on to say: "I asked Bruce as to whether his friend Stephen helped him and he said: "Oh yes, he does a bit of painting, cleans up outside and contributes to weekly food expenses." "Bruce also said to the Board that: "Stephen has also started a vegetable garden at the rear and was very proud to show it to me." 22 On 5 August 1997 a Property Services Unit Report contained the following: "Shares house with friend Stephen Buckley who provides some stability in client's life but pays no rent." I take it that Stephen Buckley is in fact Stephen Blackley. 23 Further down in the Report is the following: "Stephen may be willing to carry out some repairs and even do painting - please discuss with him and his girlfriend." 24 On 7 August 1997 a Property Inspector's Report contained the following: "The client's friend (Stephen Buckley) did say that he would be prepared to do some painting to the property if the paint and other materials were supplied." 25 So whilst there was a willingness on the part of the second plaintiff to undertake some painting to the property it appears that it never happened, either because of inertia by the second plaintiff or the deceased or because the paint was not provided. There is evidence both in the second plaintiff's affidavit and given in cross-examination that he had a close relationship with the deceased and that he regarded the deceased as a father. His affidavit evidence was that he was very fond of Bruce and was closer to him than his own father and that Bruce called him 'son'. 26 Lisa Maree's evidence, as I have already mentioned, referred to incidents where the deceased was incontinent. There were also other matters that the plaintiffs attended to. The deceased had fused various electrical appliances. These were replaced by the plaintiffs. There is evidence of taking Bruce for appointments, doing shopping and cleaning, washing and ironing although in terms of cleaning most would not regard the effort that was put in by the plaintiffs would be acceptable. 27 In my view the second plaintiff did more than one would normally expect from a boarder or a lodger. Notes in Exhibit "D", Submission Subfile, the Protective Commissioner referred to the plaintiffs as the carers of the deceased. Provision 28 The deceased died intestate. His sister obtained Letters of Administration. The only asset of any note in the Estate was a one-half interest in the property where he resided. The other half-interest being held by his sister, the defendant in these proceedings. 29 The second plaintiff obtains no benefit on the deceased's intestacy. The plaintiffs current asset position is substantially the same as it was at the beginning of these proceedings. Neither he nor his wife own real estate and they do not own a motor vehicle. In his affidavit of 30 September 2000 he estimated value of his assets at $9,836. During the course of cross-examination the plaintiff was examined in relation to money that had been paid into his Westpac account. It would appear that between December 2000 and February 2001 he was in receipt of $47,000. This money came by way of a legacy from his grandfather's estate. However his current bank statement shows as at 10 April 2001 he had $6,076.20. 30 There is little evidence of how the whole of the $47,000 was expended. There is evidence that furniture has been purchased and a loan of $6,000 was made to a friend. There is also evidence in the bank statements that between December 2000 and March 2001 sums between $500 and $1,000 were withdrawn from the account on a regular basis. Many of the drawings were done by way of Handibank withdrawal. The second plaintiff's current income, as I have already mentioned averaging a nett amount of $420 per week. His wife, the first plaintiff receives pensions amounting to $400 per fortnight. Their average weekly income therefore is approximately $620. The debts that the plaintiffs have amount to approximately $6,000. They pay $250 per week for accommodation and approximately $395 for other living expenses. On average there is a shortfall of $25 per week.. 31 Each member of the family has some medical problem. The second plaintiff suffers from a disease which restricts his ability to lift heavy objects or to bend. However, currently he is not experiencing any problems and in fact is in full-time employment. The first plaintiff suffers from a stress related illness which affects her muscles. This ailment prevents her from doing repetitive, high pressure jobs or jobs which require her to stand for long periods of time. Their son Michael was born with a liver condition known as Allagile Syndrome which is a physical condition that affects his liver, kidneys, heart and eyes. As a consequence he will have special nutritional requirements and medication for the whole of his life. He has a low immune system and frequently gets eye and respiratory infections. The pulmonary artery in his heart is narrower than normal and his eyes have a growth on the back of them. They have been informed by the Children's Hospital that Michael may need a liver transplant at some stage in the future. The first plaintiff gave evidence that the weekly cost for medication in the summer time is $20 and in the winter time it varies between $30 and $40. 32 The plaintiffs have modest assets but on-going and pressing needs. In my view some provision ought to be made out of the Estate for the second plaintiff. One matter of concern however was the non-disclosure of $47,000. Having regard to the capacity of the plaintiffs I am of the view that there was no attempt made by either of the plaintiffs to either mislead their legal representatives, the other side or the Court. Produced in Court by the plaintiffs were in fact the bank statements evidencing payments into the account of $17,000 and $30,000. What is of some concern in relation to the $47,000 however is the fact that the money to a large degree has been spent without the plaintiffs being able to indicate how and in what manner it was spent. I have already mentioned a loan and furniture but those two matters still leave somewhere in the vicinity of $35,000 unaccounted. I have some doubts about the second plaintiff being able to manage any sum of money given to him from the Estate. I am mindful decisions such as Bondy v Vavros unreported 29 August 1988, Young J and Howarth v Reid, Powell J 15 April 1991. However in making any provision for the second plaintiff it seems to me that the only option open to the Court is to in fact make a payment by way of a lump sum to the second plaintiff. In my view the second plaintiff has demonstrated a need. In his affidavit of 13 September 2000 he expressed his needs in the following terms: "To find better accommodation for my family, to put money aside in case Michael needs medical attention as he gets older; to put money aside for Michael's education and to buy new household and baby furniture." 33 There is no evidence which attempts to quantify any of those matters that the second plaintiff describes as needs. They now have other accommodation. However it is debatable as to whether it is better. It is shared premises with five other people all sharing, as I understand it common laundry facilities. From the $47,000 some furniture has been purchased. Whether that will meet all their requirements it is not clear. The other two matters raised relate to Michael's health and his education. Once again it may be debatable whether provision should be made out of the deceased's Estate for the child of the second plaintiff. It seems to me however that some provision should be made to enable the second plaintiff to obtain better accommodation and to provide a fund which will meet any medical expenses that will arise. 34 Before turning to the quantum of any provision to be made for the second plaintiff it is necessary to say something about the defendant. One of the matters that must be considered are the competing needs of the parties. I think it is important to bear in mind that the deceased died intestate. He made no positive indication one way or the other about his testamentary intentions. His sister, being his closest relative has a statutory right and priority over the Estate. However, there is ample evidence which demonstrates that the deceased and the defendant were not close. The defendant's affidavit of 5 February 2001 deposes that "she infrequently visited her brother." In fact the last occasion was approximately in 1994 some five years before he died. There is evidence from the files of the Protective Commissioner that they were not close. Exhibit "F" contains a Social Worker Report from Lidcombe Hospital dated 29 October 1992 in which the writer states that "the deceased and his sister were estranged." In Exhibit "D" there is a s 41 report. On page 3 of that report the writer makes the following comments: "Mrs Proctor ( i.e. the defendant ) has nothing to do with her brother as there is some ill feeling between the two". This report was dated 2 August 1995. 35 From those matters it can be seen that the deceased and the defendant did not have a close relationship. It is highly improbable that had the deceased made a Will his sister would have been the major beneficiary. 36 The defendant has set out in an affidavit of 20 June 2001 her assets. She owns a property at Taylors Arm for which she paid $79,000. She purchased the property from the proceeds of sale of a house at Bowraville and the proceeds of sale of the Chester Hill property. She is sixty-six years of age and she is on the pension. She has a motor vehicle and has money in a bank account. However there was no evidence of the amount contained in the bank account. Her pension is exhausted every fortnight. It would seem that there is no money left over for any contingencies. 37 Provision for the second plaintiff from the Estate of the deceased should be made in my view taking into account the accommodation and medical needs and the possibility that the second plaintiff may have periods of unemployment. Provision ought to be made out of the Estate to the second plaintiff the sum of $20,000. 38 I make the following orders; 1. There be paid out of the Estate to the second plaintiff an amount of $20,000. 2. The second plaintiff be paid his costs out of the Estate on the party/party basis. 3. The defendant's costs be paid out of the Estate on the indemnity basis. ********* Last Modified: 07/02/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.