DEVONSHIRE v HYDE [2002] NSWSC 30

Reported Decision : (2002) DFC 95-247

New South Wales Supreme Court

CITATION : DEVONSHIRE v HYDE [2002] NSWSC 30 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3526/2000 HEARING DATE(S) : 30/01/2002 JUDGMENT DATE : 13 February 2002

PARTIES : TIMOTHY ERNEST DEVONSHIRE v LORRAINE BEATRICE HYDE JUDGMENT OF : at 1

COUNSEL : Miss E. Cohen for plaintiff Mr L.J. Ellision for defendant SOLICITORS : Mr Rob Davidson for plaintiff Bartier Perry for defendant CATCHWORDS : Family Provision. Application by same sex de facto partner. Short relationship. Benefits provided to plaintiff after date of death. Failure to properly quantify costs of further education of the plaintiff. Small legacy to the plaintiff. Light v Anderson (1992) DFC 95120 Simonis v Perpetual Trustee Co Ltd (1990) 21 NSWLR 677 CASES CITED : Re Fulop Deceased (1987) 8 NSWLR 679 Churton v Christian (1988) 13 NSWLR 241 Brown v Faggoter Court of Appeal 13/11/98 Singer v Berghouse (1994) 181 CLR 201 DECISION : Paragraph 63

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

Master Macready

Wednesday, 13 February 2002

3526/00 TIMOTHY ERNEST DEVONSHIRE v LORRAINE BEATRICE HYDE Judgment 1 MASTER MACREADY: This is an application under the Family Provision Act 1982 in respect of the estate of the late Stephen Mark Chuck who died on the 15th March 2000 aged 44 years. The deceased had not married nor did he have children. He was survived by his parents and the plaintiff. The plaintiff in the present proceedings alleges that he was in a de facto relationship with the deceased at the date of the deceased's death and for some years beforehand. 2 The last will of the deceased was made on the 23rd December 1994. By that will he appointed a long-time friend, the defendant, as sole executrix. He gave the whole of his estate to his parents Sidney Noel Chuck and Linda June Chuck. 3 The main asset in the estate of the deceased was his unit at Darlington and this has an agreed value of $360,000. There were other assets some of which have been realised to pay his debts and some of them retained. The present unrealised assets including the unit are valued at $370,271. 4 The present outstanding liabilities of the estate amount to $216,214 leaving a net estate, before the provision for costs and some other unquantified liabilities to which I will come to in a moment, of $154,057. 5 The plaintiff's costs in this matter were estimated in the sum of $57,000. The case was originally set down for three days and the estimate was made on that basis. Given that the case has only occupied one day of hearing that estimate was reduced to $47,000. The defendant estimated her costs for a three-day hearing at $75,000. Given the reduction in the length of the hearing the estimate was reduced to $65,000. This is a total of $112,000 leaving a balance in the estate of $42,057. 6 That estimate does not take into account a number of other costs that will be incurred. The largest of these costs will of course be the costs of sale of the unit. It is quite clear in this case that the unit will have to be sold as the bank which holds a mortgage over the property has already obtained judgment against the executrix both for possession and the amount under the mortgage. Costs on sale could be expected to be in the order of $10,000 and there are also accounting fees, income tax together and the executor's claim for commission which have not been included in the above figures. There is also an increasing level of liability given that the interest on the mortgage is accumulating at somewhere between $900 and $1000 each month. 7 It is probably useful to deal with a little of the chronology in the matter. The deceased was born on the 20th January 1956 and the plaintiff was born on 25 October 1978. There was thus a 22 year difference in their ages. As I have mentioned, it was in December 1994 that the deceased made his last will to which I have referred. Two years later in March he completed a superanuation form nominating his sister Diana to receive his superannuation. The superannuation was in an amount of some $85,000 that has not yet been paid. The evidence before me indicates that a claim has been made by the estate. There is no evidence of any final decision having been made by the trustees of superannuation fund as to any payments to be made. There is no possibility at this stage of making any order in relation to this amount as notional estate. It may be that some of the superannuation fund might go to the deceased's sister and some might go to the estate. Given the almost total lack of evidence advanced by the parties on this aspect I cannot assume that the estate will receive this sum. 8 On 4 April 1996 the deceased left his employment with Baxters footwear and moved to Sydney. In July 1996 he bought a home unit at Darlington for about $200,000. At this stage the deceased's sister Diana moved into the flat and flatted with the deceased. 9 It was on 22 December 1996 that the plaintiff says he met the deceased and had a sexual encounter with him. At that stage the plaintiff, who had a very difficult life and upbringing, was working as a male prostitute. In January 1997 the deceased's sister, Diana, ceased flatting with the deceased. It was in March 1997 that the plaintiff says he commenced a sexual relationship with the deceased at Fairymeadow. It was on 10 April 1997 that the plaintiff alleged that he moved into the deceased's unit and commenced to live with him. The plaintiff at that time was unemployed and during 1997 the plaintiff did some agency work as a nurses aid from time to time. 10 It was in April 1998 that the defendant submitted that the plaintiff moved into the deceased's unit. This is denied by the plaintiff and is a major point of difference between the parties in the case. In May 1998 the plaintiff gives an account of a ceremony of commitment wherein the deceased and he exchanged rings. 11 It was in June 1998 that the plaintiff was first introduced to the defendant. It was the defendant's position that it was not before this date that the relationship between the plaintiff and the deceased commenced. 12 The plaintiff had from time to time used heroin but he last used the drug in April 1999. It was on 15 March 2000 that the deceased died. The summons in this matter was filed on 9 August 2000. On 20 November 2001 the mortgagee served a notice. In January 2002 consent orders were signed and the mortgagee obtained judgment for possession and judgment for approximately $188,000. 13 The plaintiff puts his case primarily on the basis that he was the de facto partner of the deceased at the date of death. In the event that this is not accepted he also puts forward that he was in a close personal relationship with the deceased or, alternatively, that he is an eligible person by virtue of the provisions of section 6 (1) (d) of the Family Provision Act 1982. The Law on a domestic relationship. 14 Prior to the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 relief was only available under the then Family Provision Act in respect of relationships between a man and a woman. Under the amendments, which took effect on 28 June 1999, there was an extension of the Act which applied to proceedings which commenced after that date. The amended Act incorporates the definition of a domestic relationship in the Property Relationships Act 1984. 15 The Act applies to domestic relationships which are defined in s 5 of the Property Relationships Act as follows:- " 5. Domestic relationships