Barnes v De Jesus [2001] NSWSC 19

New South Wales Supreme Court

CITATION : Barnes v De Jesus [2001] NSWSC 19 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 105826 of 1999 HEARING DATE(S) : 30 November 2000 and 1 December 2000 JUDGMENT DATE : 2 February 2001

PARTIES : Leila Alison Barnes (Plaintiff/Cross-Defendant) Antonio Manuel De Jesus (Defendant/Cross-Claimant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr D W Elliott (Plaintiff/Cross-Defendant) Mr L Ellison (Defendant/Cross-Claimant) SOLICITORS : Ticli Blaxland (Plaintiff/Cross-Defendant) S J Nicolau & Co (Defendant)/Cross-Claimant) CATCHWORDS : SUCCESSION - letters of administration - competing applications for grant between daughter and alleged de facto husband - whether de facto relationship established - DE FACTO RELATIONSHIPS - whether established LEGISLATION CITED : Wills Probate and Administration Act 1898 ss61B(3B); 61B(13) CASES CITED : Roy v Sturgeon (1986) 11 NSWLR 454 Simonis v Perpetual Trustee Company Limited (1987) 21 NSWLR 677 DECISION : See paragraph 29

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

FRIDAY 2 FEBRUARY 2001

105826/99 LEILA ALISON BARNES v ANTONIO MANUEL DE JESUS

JUDGMENT

Introduction 1 Doris Lillian Barnes died on 17 November 1996 a divorced intestate. She left two children, Leila Alison Barnes (the plaintiff) and Edward Jesse Barnes. The plaintiff seeks a grant of Letters of Administration of her mother's estate. Her brother has consented to such a grant. 2 Antonio Manuel De Jesus, the defendant, by cross-claim seeks a grant of administration on the grounds that he was the de facto husband of the deceased for a continuous period of not less that two years before her death. 3 The deceased's estate consisted of a house at 48 Holmsdale Street, Marrickville, with an estimated value of $180,000, a Nissan Wagon with an estimated value of $1,500 and a Savings Account with the St. George Bank of $1,137. The liabilities of the estate amount to around $2,000. 4 It is clear that if Mr De Jesus succeeds in establishing that he was in a de facto relationship with the deceased for the required period he will be entitled to the whole of the estate: ss61B(3B) and 61B(13) of the Wills Probate and Administration Act 1898. The Facts 5 Doris Lillian Barnes was born on 27 June 1937, and Antonio De Jesus was born on 25 October 1952. 6 The deceased married Edward Robert ("Ted") Barnes on 5 November 1955. They were divorced on 19 February 1991. There were two children from this relationship: the plaintiff born on 25 April 1964 and her brother born on 20 October 1955. 7 The deceased was also involved in a marriage of convenience on 23 February 1991 with Peter Aghimien, apparently to enable him to gain residence in Australia. This marriage was dissolved on 11 November 1994. This marriage is of no significance in this case. The parties to it never lived together. 8 Mr De Jesus met the deceased in late 1990. At that time he was married but separated from his wife. He started "seeing her" and commenced a sexual relationship soon afterwards. In 1991 he commenced work in Coffs Harbour. He visited the deceased or the deceased visited him frequently for weeks or weekends and they stayed in either the Marrickville residence or his unit in Coffs Harbour during these visits. Mr De Jesus moved most of his belongings into the Marrickville residence on 17 April 1991, while still working in Coffs Harbour. By the beginning of 1992 he had moved into the Marrickville residence. 9 From this time the house was, and remains, his only residence in Sydney and Mr De Jesus lived there whenever he was in Sydney. It was shown as his residence for tax purposes and on job applications. 10 Exhibit 2 tendered by the Defendant is a series of photographs of himself and the deceased posing in a manner consistent with the alleged relationship. Some of these photographs are dated and these dates extend from 26 October 1991 to 29 October 1994. The Defendant also tendered a number of bundles of cards both written by and addressed to the deceased and the Defendant as a couple. Some even name the dog as though he were a family pet. Other cards from the deceased and her family to "Tony" are in evidence. 11 During the years 1992 and 1993 the couple lived together, slept together, went out together and shared at least some expenses. They presented in public as a married couple might. Ms Tabram, a friend of the deceased called by the plaintiff, who was not sympathetic to the defendant's claim, seemed to accept that Ms Barnes and Mr De Jesus were in a de facto relationship stating that "I think it started out that way [as a de factor relationship]. Whether it carried on like that later on, I don't know."