RICHARDSON v KIDD [2002] NSWSC 306

Reported Decision : (2002) DFC 95-245

New South Wales Supreme Court

CITATION : RICHARDSON v KIDD [2002] NSWSC 306 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2847 of 2001 HEARING DATE(S) : 21/03/02, 22/03/02 JUDGMENT DATE : 17 April 2002

PARTIES : WENDY RICHARDSON v FRANCES JOY KIDD (Estate of Eric Alfred Dudeney) JUDGMENT OF : Master Macready at 1

COUNSEL : Miss J. Pentelow for plaintiff Mr C. Harris for defendant SOLICITORS : Marsdens for plaintiff Maclarens for defendant CATCHWORDS : Family Provision. Application for declaration that plaintiff was living with the deceased as his de facto partner at the date of death. Declaration refused. Application under Family Provision Act. - Held no domestic relationship as parties not living together but plaintiff was an eligible person as part of household and partly dependent. Order for legacy in favour of plaintiff. DECISION : Paragraph 73

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

Master Macready

Wednesday 17 April 2002

No 2847/ 2001 WENDY RICHARDSON v FRANCES JOY KIDD – ESTATE OF ERIC DUDENEY JUDGMENT 1 MASTER: This is an application brought by the plaintiff in which she seeks, first, a declaration that the defendant holds the estate of the late Eric Alfred Dudeney upon trust for the plaintiff absolutely. In the alternative she seeks orders pursuant to section 7 of the Family Provision Act 1982 out of the estate of the late Eric Alfred Dudeney. A Judge of the Court has referred the trial of the matter to a Master. 2 The deceased died on 28 August 2000 aged 46 years. He had never married and had no children. His closest relative was the defendant, his sister. He was also survived by the plaintiff who submits that she lived with him at the date of his death as his de facto partner. 3 As there is an intestacy, absent the claim of the plaintiff, the whole of his estate would normally pass to his sister, the defendant. At the date of his death the deceased owned a home unit at Queensborough Road, Croydon Park which had an estimated value of $130,000. The unit has been sold and the proceeds resulting from the sale, after allowance of expenses, amount to $116,758.44. The deceased also held superannuation interest in respect of his employment with Telstra. The Trustee has determined that the total benefit, namely, $94,600 shall be paid as to 80% to the estate and 20% to the plaintiff. Accordingly, the estate will receive $75,680. There are a number of other minor assets and some small liabilities for costs and other matters. 4 There is some doubt as to whether or not income tax will be payable on the superannuation payout to the estate. In the event that tax is not payable the estate will comprise $181,993.85. In the event that income tax will be payable the estate will comprise $170,641.85. Both parties have incurred costs in the matter. The plaintiff's costs are estimated at $37,920 and those of the defendant are estimated at $24,223. This is a total of $62,143. I am thus dealing with a case in which the estate available for distribution, in the event that the plaintiff succeeds, is likely to be either $107,498 or $119,850. 5 The plaintiff's principal claim is for a declaration that she is entitled to the whole of the deceased estate pursuant to section 61B(2) of the Wills Probate and Administration Act. Under that section the plaintiff says that she was the wife of the deceased by virtue of the fact that she was living with the deceased in a de facto relationship at the date of his death. In the event that the court does not find in favour of her claim in this respect the plaintiff makes an alternative claim under the Family Provision Act 1982. The relevant claim is that she was living with the deceased at the date of his death in a domestic relationship which was a close personal relationship rather than a de facto relationship. In the event that this claim is not successful the plaintiff makes a claim that she is an eligible person under section 6 (1) (d) of the Family Provision Act 1982 in that she was at one time part of the household of the deceased and at one time partly dependent upon the deceased. 6 In her evidence in this case the plaintiff initially suggested that she lived with the deceased at his unit at Croydon Park from April 1998 until September of that year. In her later affidavit evidence she suggested that she lived with him from April 1998 until January 1999. The plaintiff had first met the deceased some time in 1996 although she initially wrongly suggested that she first met him in 1995. She was then living in a Housing Commission property which she rented at Minto. The plaintiff maintained this property throughout the time that she knew the deceased. After she ceased living at the deceased's unit at Croydon Park on a full-time basis she returned to her Minto house. She says that she continued her relationship with the deceased and that on weekends or at times when the deceased was sick or on holidays they would reside together at his unit at Croydon Park. 7 In respect of the first claim by the plaintiff the defendant raises as a defence an issue estoppel which is said to arise because of proceedings which occurred in the Probate Division of this court before His Honour Justice Young, Chief Judge in Equity. Because this may be a bar to the plaintiff's principal claim it is convenient that I deal with this issue before the other matters. 8 The plaintiff lodged a caveat against a Grant of Administration in the deceased's estate based upon her interest which she claimed was that she was the deceased's de facto spouse and as such was entitled to his estate on intestacy. The defendant lodged a summons seeking administration of the estate of the deceased and also filed a notice of motion on 27 February 2001 seeking that the caveat filed by the plaintiff cease to be in force. On 2 April 2001 Mr Justice Young directed the caveator to file all evidence on which she based her a claim no later than 10 April 2001 and stood the notice of motion into the Duty Judge's list noting the issue to be tried was whether there is a prime facie case that the caveator was, at the date of death, the de facto wife of the deceased. 9 The matter came on for hearing on 24 April 2001 and the present plaintiff's then available evidence was read on the hearing of the motion. No defendant's evidence was read and there was no cross-examination. His Honour, Mr Justice Young, heard the matter on that day and gave judgment. At page 15 he concluded his judgment with the following remarks. "Therefore I do not consider that there is sufficient material here to let the case go further for trial and so I decided that there is not, on a prime facie level, sufficient evidence of a de facto relationship to allow the matter to proceed further. That is the question that I was asked to decide, and I decide the same by order under part 31 of the Supreme Court Rules 1970. " 10 Part 78 rule 69 of the Supreme Court Rules deals with orders that a caveat ceases to be in force. Of importance is rule 69 (4). That provides: -- "Where in respect of the caveat, or any of the caveats, the court considers that the evidence does not show -- (a) that the caveator has an interest in the estate or has a reasonable prospect of his establishing such an interest; and (b) some matter occasioning some doubt as to whether the grant ought to be made, the court may order that that caveat ceased to be in force in respect of the intended application." 11 It would seem that His Honour was either exercising the jurisdiction under rule 69 (4) (a) or determining the same matter as a separate issue under Part 31. His Honour concluded in paragraph 16 by saying:- "The effect will be that no further caveat should be lodged to protect the defendant's interest and that unless the registrar considers that some other course should be taken, administration can be granted in due course." 12 The defendant's defence was based upon issue estoppel. They relied upon the standard formulation of that defence which is set out in Blair v Curran 62 CLR 464 at page 531-533. There Dixon J said: -- "A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.