WESTON v HOURN [2000] NSWSC 543

New South Wales Supreme Court

CITATION : WESTON v HOURN [2000] NSWSC 543 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 1837 / 1999 HEARING DATE(S) : 30 & 31 May 2000 JUDGMENT DATE : 16 May 2000

PARTIES : ERIC WESTON v NEVILLE DOUGLAS HOURN JUDGMENT OF : Master Macready at 1

COUNSEL : J. Whittle SC and Bruce Tounsend for plaintiff Mr A.M. Colefax for defendant David Fletcher & Associates,Tumut SOLICITORS : for plaintiff Peter Gain & Associates, Wagga Wagga for defendant CATCHWORDS : Family Provision. Application under Family Provision Act by a plaintiff claiming to be the defacto partner of the deceased. So held and orders for provision made out of the estate of deceased. Simonis v Perpetual Trustee Co (1987) 21 NSWLR 677; In Re Fulop Deceased (1987) 8 NSWLR 679; Ball v Newey (1988) 13 NSWLR; Benny v Jones (1991) 23 NSWLR 559; CASES CITED : Petroholis v Hunter (1991) 25 NSWLR 343; McKenzie v Baddeley (Court of Appeal 3/12/91; Williams v Legge (Court of Appeal 16/3/93); Churton v Christian (1988) 13 NSWLR 341; Singer v Berghouse (1994) 181 CLR 201. DECISION : Paragraph 61

-- - 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

WEDNESDAY 31 MAY 2000

1837/99 - ERIC ERNEST WESTON v NEVILLE DOUGLAS HOURN - ESTATE OF MARGARET FRANCES BOND

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Margaret Frances Bond who died on 19 December 1998 aged 55 years. She was survived by her husband from whom she had been separated since 1988. Notice of the proceedings has been given to him and he makes no claim on the estate. She had no children and was survived by the plaintiff who had lived with the deceased for some seven or eight months prior to her death. 2 In her will, which was made on 8 September 1998, she left the whole of her estate to her niece, Linda Maree Hourn. Linda is a daughter of the defendant, the defendant of course being the executor under the will and is the brother of the deceased. The deceased had two twin sisters who also had children. It was only the defendant's child who benefited and the plaintiff was not mentioned at all in the will. She referred to her husband in these terms in her will: "4. I have considered but rejected any claims which my estranged husband, Barry Francis Bond, might have upon my estate as my husband deserted me ten years ago and has made his own life independent of me." 3 The estate consisted of her home in Gundagai, which is now valued at $135,000. There was a car worth $10,000 and some personal effects. Although the house has been rented the income has been used to meet the estate expenses to date. As occurs in these matters, costs have a very substantial impact on the outcome. In the present case the defendant's costs in respect of the administration are some $3,000; and in respect of these proceedings, some $19,734. Part of the costs have been paid out of the income from the property which has been rented since the date of death and the figure I just quoted takes into account the payment of various costs from that income. The plaintiff's costs on a solicitor/client basis are estimated at some $30,000. 4 With these figures in mind, at least $53,000, it is perfectly clear in this case the house will have to be sold to meet the costs. There are the costs of selling. There are agents fees of some $3,530, plus solicitors costs of $846, making $4,376. There has been some debate as to whether or not there ought to be some further discount for an early sale of some $13,500, but the valuer has valued the property at that figure. Although it may take some time I think I will work on the basis of its value less these costs. What this tends to indicate is that the likely residuary estate of the deceased will be $77,750, plus the car which has already been transferred into the possession of the beneficiary. 5 It is useful to deal with some of the history of the parties in order to put into context the matter. The deceased was born on 29 August 1942 and the plaintiff on 2 August 1945. The deceased married her husband Barry Bond on 27 April 1963. In 1966 they purchased the subject property at 63 Otway Street, Gundagai. In 1968 they moved into the property and it was in 1981 that the plaintiff himself came to Gundagai from Newcastle. He worked for a while at the Hume Hotel with some friends and even lent them funds for the purposes of their business. Unfortunately for him in December 1982 the hotel closed, the friends disappeared, as did the funds which the plaintiff had provided to them. The plaintiff then moved in with George Hourn, a cousin of the deceased. In 1983 the deceased and her husband Barry moved to Canberra. At this stage of course she had not met the plaintiff. 6 In 1988 the deceased had an operation for cancer. She had a hysterectomy as a result and at that stage she separated from her husband. She came back to Gundagai and lived in the Otway Street property. There was an arrangement of their financial affairs in that apparently the Canberra property which was in her husband's name, was kept by him and she received by way of transfer for $1 the Otway Street property. 7 It was in 1988 that the plaintiff and the deceased became acquainted. This happened when the deceased began to visit with her mother at the house of George Hourn for social occasions including cards and the like. In early 1989 the friendship that had obviously started to develop between the plaintiff and the deceased led to them going on a trip to Bowraville and Sydney. The parties visited the plaintiff's family. Over the next several years that pattern of going away continued and it was after that first trip that the plaintiff says that he first had a physical relationship with the deceased. 8 In the early 1990s the deceased was suffering from cancer. She had an operation to remove the cancer which left her with a colostomy bag and she had a number of attendances at hospital not only in relation to the operation but also for the subsequent treatment. There was both chemotherapy and radiotherapy and there were continual trips to Canberra in order for this to occur. Probably by the middle of the 1990s the position of the deceased improved somewhat and the plaintiff and the deceased started further trips. By 1995 the relationship was one, according to the plaintiff, whereby he would visit and stay over at the deceased's home on the weekends but he would live otherwise in his rented accommodation or boarding accommodation. He would come each day, according to him, and assist with household tasks, particularly in the garden. In early 1998 the deceased's condition deteriorated and in March 1998 the deceased nearly died as a result of apparently some wrong administration of drugs during her treatment. At that stage when she left hospital on this occasion she came home and lived with her mother for a few weeks and thereafter in April or May she moved back to her home. At that stage the plaintiff moved in to live in the home with the deceased. The plaintiff, who has to go to work early in the morning, said he occupied during the week a separate bedroom so he would not disturb the deceased and would spend time with her in her room on the weekend. By November 1998 the deceased's illness had progressed substantially and she was admitted to Gundagai Hospital. She died on 19 December 1998. 9 In March 1999 these proceedings were commenced. The plaintiff claims to be an eligible person on two bases. The first is that he was living with the deceased at the time of her death in a defacto relationship. The alternative basis is that he was part of the household of the deceased and partly dependent upon her. 10 I turn to whether or not he was living in a defacto relationship. 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 referred to by the Court of Appeal in Light v Anderson & Ors, (1992) DFC 95 120. They referred 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 Act after reviewing the authorities said at page 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 questions of eligible person. The factors indicated by Powell J are as follows (at 459):