Oliver William HINDE v Allen John BUSH & Ors [2002] NSWSC 828

Reported Decision : (2002) DFC 95-260

New South Wales Supreme Court

CITATION : Oliver William HINDE v Allen John BUSH & Ors [2002] NSWSC 828 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 3723/00 HEARING DATE(S) : 05/09/2002 JUDGMENT DATE : 13 September 2002

PARTIES : Oliver William HINDE v Allen John BUSH & Ors JUDGMENT OF : Acting Master Berecry at 1

COUNSEL : Mr M Gorrik (Plaintiff) Mr V Stefano (Defendant) SOLICITORS : Barry Wilson (Plaintiff) Stormers (Defendant) CATCHWORDS : Family Provisions Act - de facto widower - long relationship - no provision - matters relevant to establishing relationship - factors warranting. LEGISLATION CITED : Family Provisions Act Property (Relationships) Act 1984 Dridi v Fillmore (2001) NSWSC 319 at para 108 Singer v Berghouse (1994) 181 CLR 201 at 209 CASES CITED : Luciano v Rosenblum (1985) 2 NSWLR 65 at 69 Marshall v Carruthers (unreported, (2002) NSWCA 47 at 65 Elliott v Elliott (unreported, 20 April 1986) DECISION : 1. Plaintiff receive by way of provision out of the Estate of the deceased, the sum of $200,000.00; 2. That from the proceeds of the Commonwealth Investment Funds paid to the defendants, the sum of $50,000.00 to be designated as notional estate; 3. Costs reserved

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ACTING MASTER BERECRY

FRIDAY, 13 SEPTEMBER 2002

3723/00 - Oliver William HINDE v Allen John BUSH & Ors JUDGMENT 1 MASTER: The plaintiff makes application under s 7 of the Family Provisions Act for provision out of the Estate of the late Lydia Beryl Bush. The plaintiff is a 72 year old male. He lived in a relationship with the deceased from 1989 until her death on 1 April 1999. The deceased had three children, namely the two defendants who are the executors of her Estate and a daughter. The plaintiff brings the proceedings on the basis that he is an eligible person pursuant to Pt 6(1)(a)(ii). There is an issue concerning the precise nature of the relationship between the plaintiff and the deceased. I will come to that shortly. 2 The plaintiff met the deceased in 1988. Shortly thereafter they formed a relationship. There was discussion between them concerning the need to maintain their respective homes. It was suggested that the plaintiff sell his home in Penrith and move to the deceased's home in South Windsor. In 1989 the plaintiff sold his Penrith property for approximately $80,000.00 and moved into the deceased's South Windsor home. It is asserted by the plaintiff that a de facto relationship commenced at that time. The plaintiff's evidence is that during the course of the relationship the parties shared living expenses. He did some work around the property. They both made contributions to the general house expenses and food and shared in the outgoings including electricity, water, gas and telephone. The plaintiff admitted that the mortgage repayments were made solely by the deceased. The plaintiff's evidence is that he painted the house. This does not appear to be contested. The defendants accept that the plaintiff painted the house. However, it is said that the first defendant supplied the paint. 3 The evidence is that the plaintiff and the deceased enjoyed each others company. A caravan was purchased and placed on a site at Tuncurry with a view to using it for holidays. The evidence is that the plaintiff and the deceased spent anything up to five weeks in the caravan during the Christmas holidays and would spend anything up to five or six occasions throughout the year at the caravan. The evidence also was that the families of both parties also used the caravan from time to time for holidays. 4 In 1994 the deceased was involved in an accident. Prior to the accident she was a diabetic. After the accident her condition deteriorated. The plaintiff's evidence is that between 1994 and 1997 he was heavily involved in caring for the deceased. The duties that he performed as a carer included administering insulin injections to her four times a day, monitoring her blood sugar levels four times a day, documenting the treatment for her doctor, administering daily medications and doing all the household chores including cleaning, washing, ironing, cooking meals and general maintenance of the house and grounds. In 1997 the deceased lapsed into a coma and was admitted to hospital for two weeks. She was diagnosed with kidney failure and placed on a dialysis program. After this diagnosis the plaintiff and the deceased's two daughters-in-law attended a training program at the Blacktown Dialysis Centre to enable them to assist the deceased. The evidence suggests that the plaintiff was the primary carer for the deceased. However, members of her family were also very supportive. The daughters-in-law assisted the deceased with the dialysis procedure when the plaintiff was unavailable. The sons and daughter took the deceased to their houses from time to time to give the plaintiff some respite. From July 1998, the plaintiff's caring role for the deceased increased. He was required to administer the insulin and other medications each day on a number of occasions between 8.00 am and 10.00 pm. He was also required to transport the deceased for medical treatment when required and did all the household chores. This role continued until shortly before the deceased's death. 5 On 28 March 1999 the plaintiff had become exhausted and the defendants agreed to care for the deceased whilst the plaintiff had a short holiday at the caravan in Tuncurry. On 29 March 1999 he was informed that the deceased had been taken to Windsor hospital. She was later transferred to Blacktown hospital where she died. He returned to Sydney and was with the deceased's three children in the time immediately prior to the deceased's death. Some issue was made to the fact that the plaintiff did not take a role in deciding when the deceased should be taken off the life support system. His evidence was that he left that up to the family, that is the three children of the deceased. In my view, that doesn't show that the plaintiff was uncaring or did not regard himself as the de facto partner of the deceased. In my view, it merely indicates his sensitivity to an extremely sad situation in which he was prepared to allow the views of her biological children to take precedent over the views of anybody else, including himself. 6 There was some evidence by the defendants which suggested that the relationship between the plaintiff and the deceased was not that of a de facto couple but a relationship which, at its highest, was one of a close personal relationship. There was even a suggestion that the relationship was nothing more than that of companionship. Some emphasis was placed on the fact that there had been, during the course of the relationship, reference to the plaintiff being a boarder. There was no evidence before me which would suggest that that was the nature of the relationship or that the plaintiff was, or held himself out to be, merely a boarder of the deceased. 7 The only independent evidence given in the proceedings was that on behalf of the defendants by the deceased's friend Dianne Holley. Her evidence in part, was that she encouraged the plaintiff to consider joint wills. She agreed, in cross-examination, that the relationship that the plaintiff and the deceased had was, for all intents and purposes, a similar relationship to that of a husband and wife. It would seem to me that the evidence is very strong to suggest that the parties were, and did regard each other as de facto partners. 8 Section 4(2) of the Property (Relationship) Act 1984 sets out matters that may be relevant in determining whether or not a de facto relationship existed. In my view the evidence clearly establishes that: