LAWRENCE v PUBLIC TRUSTEE HUGHES v PUBLIC TRUSTEE [2001] NSWSC 375

New South Wales Supreme Court

CITATION : LAWRENCE v PUBLIC TRUSTEE HUGHES v PUBLIC TRUSTEE [2001] NSWSC 375 CURRENT JURISDICTION: EQUITY DIVISION FILE NUMBER(S) : SC 1260/2000; 1283/2000 HEARING DATE(S) : 3/4 May 2001 JUDGMENT DATE : 10 May 2001

PARTIES : KENNETH WILLIAM LAWRENCE v PUBLIC TRUSTEE JUANITA CLARE HUGHES v PUBLIC TRUSTEE JUDGMENT OF : Master Macready at 1

Miss E. Cohen for Kenneth Lawrence COUNSEL : Mr. M. Willmott for Juanita Hughes Mr G.E. Underwood for Public Trustee Colquhoun & Colquhoun for Kenneth Lawrence SOLICITORS : Sheridan & Stubbs for Juanita Hughes Howard Cheridan Cooney Harvey for Public Trustee CATCHWORDS : Family Provision - Claim by two members of a household. - No relatives and estate passes to Crown as bona vacantia. - Order for legacies. Ball v Newey (1988) 13 NSWLR 1989 Benny v Jones (1991) 23 NSWLR 559 Petrohilos v Hunter (1991) 25 NSWLR 343 CASES CITED : McKenzie v Baddley (CA 3.12.91) William v Legge (CA 16.3.92) Re Fulop Deceased (1987) 8 NSWLR 679 Churton v Christian (1998) 13 NSWLR 241 Singer v Berghouse (1994) 181 CLR 201 DECISION : Paragraph 42

1. MASTER: These are two applications under the Family Provision Act in respect of the estate of the late Albert John Lawrence who died on 7 August 1998 aged approximately 68 years. The deceased had never married and had no children. There are two proceedings which have been heard together with the evidence of each one being evidence in the other. Both plaintiffs are people who claim to be eligible persons, as they say that they were members of the household, comprised of the deceased and themselves, and were partly dependant upon the deceased. The deceased died intestate and it is apparent that his estate passes to the Crown as bona vacantia. 2 The amount of the estate at the present time is $505,651.41. There have been costs incurred in the proceedings. The plaintiff Lawrence's costs are estimated at $25,000 to $30,000, those of the plaintiff Hughes, between $20,000 and $25,000 and those of the defendant at $39,000. 3 The plaintiffs, in order to demonstrate that they are eligible persons, each have to establish that they are a person who was; (1) at any particular time, wholly or partly dependant upon the deceased person and; (2) was at that particular time, or at any other time, a member of a household of which the deceased person was a member. 4 It is necessary to deal with each of the plaintiffs separately, and I will firstly turn to the claim of plaintiff Kenneth William Lawrence. It us useful in this respect, to deal with a chronology of the relationship between this plaintiff, members of his family and those of the deceased's family. 5 The plaintiff was born on 12 May 1941, and he lived with his mother and father until 1943. In 1943 his father left to go to war and did not return to the plaintiff's mother. Subsequently they were divorced. Between 1943 and 1947 the plaintiff lived with his mother, but spent school holidays with the deceased and his family, at their property. In 1947 the plaintiff commenced to live with the deceased, and the deceased's parents, at a farm which apparently, at that stage, the deceased and his father operated in partnership. After he moved to the farm the plaintiff was told by the deceased that his mother had to work in town, and that she could not afford to keep him in town. While living in the deceased's home, with the deceased's parents, the plaintiff started going to school from the dairy farm at Frederickton. At this time, the deceased himself was some nine years older than the plaintiff and, in fact, had just left school. Thereafter, the plaintiff lived with the deceased and his parents, until he was about 15 or 16. In 1956 the plaintiff left the deceased's dairy farm to find work, and ultimately married in 1965. The father of the deceased, who is known in the evidence as Uncle Dolly, died in 1966. In 1985 the deceased's mother, referred to as Aunty Stella, moved to a nursing home. In 1995 the plaintiff retired, due to ill health and in 1998 the deceased died. 6 Over the years from 1956 until the date of death, the plaintiff did, from time to time, when he was in the area, call and visit the deceased. In the case of the plaintiff, Mr Lawrence, it is fairly clear that he was part of the household of the deceased. 7 There was an extensive discussion of the meaning of "household" in Kingsland v. MacIndoe 1989 VR 273 and it seems clear that the word in its ordinary sense is as set out in the Oxford dictionary: "The holding or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".