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: (i) the relationship was lengthy; (ii) throughout the duration of the relationship they occupied a common residence in which contributions of a non-financial nature were made by the plaintiff; (iii) a sexual relationship existed until 1996; (iv) the parties pooled their financial resources to the extent that they both contributed to the household expenses; (v) the care and support given by both to each other, but in particular by the plaintiff to the deceased from 1986, demonstrates a mutual commitment to a shared life; (vi) each shared different aspects of the performance of household duties; (vii) the reputation and public aspects of the relationship makes it clear that they were regarded as a de facto couple. 9 Even if I accept the defendants' contention that the plaintiff was a companion and carer, it seems to me that the requirements of s 5(1)(b) of the Property (Relationships) Act are met. In my view, on the evidence before me the plaintiff has established at the very least that there was a close personal relationship. In Dridi v Fillmore (2001) NSWSC 319 at para 108 Master Macready considered that such a relationship requires, inter alia, a level of care such as assistance with mobility, personal hygiene and physical comfort. The plaintiff has satisfied this requirement discussed by the learned Master. 10 The Estate was valued by the Executors on 5 April 2001 as follows:- Real Estate $150,000.00 Money on deposit: ANZ Bank $ 565.56 Commonwealth Bank $ 1,774.57 Commonwealth Income Fund $ 94,813.67 TOTAL $ 259,153.40 11 At the date of the hearing of the application, the value of the Estate was given as $338,153.00. One valuation report has been relied on, giving the property a value of $240,000.00. During the course of the hearing, the first defendant gave evidence that the cash component of the Estate had been distributed to the extent that the first and second defendant had received approximately $100,000.00 and that debts of the Estate had been paid to the extent of approximately $7,600.00. Therefore, the actual Estate consists of some $6,000.00 together with the realty at South Windsor. The plaintiff seeks, if appropriate, for property to be designated as notional estate. 12 Under the terms of the will the plaintiff received nothing out of the deceased's Estate. Her will was made on 9 May 1997. They had been a couple for about eight years at the time the will was made. There is evidence to suggest that the deceased's view always was that if anything should happen to her the plaintiff could remain in the house for as long as he wanted; thereafter he could move to the caravan at Tuncurry. She made no provision for him in her will. The only provision is made for her children. The defendants would receive $50,000.00 each and the residue of the Estate was to be given to the two defendants and her daughter, Deborah Gay Sanday. 13 The plaintiff does not have many assets. On the sale of his Penrith property he deposited the funds in a GIO Investment Account. Subsequently, he made the following purchases:- A 1995 Daewoo Sedan A Viscount Caravan Furniture Transferred approximately $19,000.00 from the GIO Investment Account to a Commonwealth Bank Keycard Account. 14 As at 29 August 2002, the plaintiff had the following assets:- GIO Investment Account $40,000.00 Commonwealth Bank Keycard Account $ 1,800.00 1995 Daewoo Sedan, valued at $ 7,000.00 Viscount Caravan, valued at $ 6,000.00 Personal effects and furniture, valued at $ 2,000.00 Boat with outboard motor, valued at $ 3,500.00 Approximately 1,000 NRMA Shares, valued at $ 3,170.00 He receives a pension from Centrelink which provides him with $440.00 per fortnight. He received approximately $400.00 per month from the GIO Investment Account. Thus his fortnightly income is approximately $490.00. There is no evidence of the plaintiff's expenditure. In evidence, he admitted that he pays no rent for his accommodation at the South Windsor property. However, his evidence is that the account was reduced because of the following withdrawals:- $8,400.00 was paid to his solicitor on account of costs and a valuation report. $10,000.00 was lent to his son. 15 His evidence, which was supported by his son, was that $2,000.00 of the loan has been repaid and that $8,000.00 is available when he wants it. Therefore, the plaintiff's cash assets are approximately $50,000.00. It is questionable whether he would be able to live on the sale of his other assets. 16 In my view, it is clear that the plaintiff is an eligible person and he is one that falls into the category pursuant to s 6(1)(a)(ii). It is also clear that when one takes into account the provisions of s 9(2) and (3), the plaintiff is able to justify his claim. It is clear on the two step consideration in Singer v Berghouse (1994) 181 CLR 201 at 209, that there ought to have been provision made for the plaintiff and, in fact, he received no provision. It is also clear that the Estate is capable of making some provision for him. Although, during the relationship the plaintiff received the benefit of residing at the deceased's premises, it cannot be said that the provision of accommodation for him was not met in kind. In my view, it is quite clear on the evidence, that not only were they a close and loving couple but that he was the primary carer for the deceased during most of the relationship and played a significant role from 1994 onwards. It is manifest, therefore, that inadequate provision was made for his proper maintenance, education and advancement simply because no provision whatsoever was made for him. In fact, it could be said that the plaintiff acted to his own detriment by commencing the relationship with the deceased. He sold his house in Penrith and moved to the deceased's premises at South Windsor. He is left in the position where some of his funds from the sale of the Penrith property have been used in pursuits that they both enjoyed. He is not in a position where, because of his age, a significant increase in the Sydney property market and his inability to earn an income, that, without some assistance, he will be able to afford accommodation. Whilst payment to the acquisition, conservation or improvement of the deceased's property is insignificant, his contribution to her welfare and contribution as a home maker, more than makes up for that position. In my view, he made a substantial contribution to the welfare of the deceased. 17 The relationship was not one of a short duration. It lasted approximately ten years. For five years of that relationship, the deceased was in ill health and required substantial caring which was provided to a large degree by the plaintiff. Matters that I have already mentioned, in my view, cover matters for consideration set out in s 9(3)(b)(c) and (d). 18 It is submitted on behalf of the plaintiff that he should receive the South Windsor property a declaration should be made in relation to the $100,000.00 that the executors have paid to themselves. In so submitting, the plaintiff's case has been put at its highest as requiring the same consideration the Court gave in Luciano v Rosenblum (1985) 2 NSWLR 65 at 69. "It seems to me that, as a broad general rule, and in the absence of special circumstances, the duty of a testator to his widow is, to the extent to which his assets permit him to do so, to ensure that she is secure in her home, to ensure that she has an income sufficient to permit her to live in the style to which she is accustomed, and to provide her with a fund to enable her to meet any unforeseen contingencies." 19 However, in Marshall v Carruthers (unreported, (2002) NSWCA 47 at 65) Hodgson JA said as follows:- "65……In my opinion, it is clear that this statement would not apply to applications by widowers…." 20 I am not of the view that this is a matter where the plaintiff should be given the property at South Windsor. The relationship lasted ten years. That may not equate with a long and harmonious marriage, it is nevertheless a long period for a de facto relationship. There can be no doubt that the relationship was a strong relationship and the plaintiff played a significant role as carer. It is also evident that the parties shared things throughout the relationship. However, it cannot be said that the plaintiff made any contributions towards conservation or improvement of the deceased's property which could be regarded as anything beyond the ordinary maintenance that one carries out on a daily basis to maintain a property. 21 It is clear that the plaintiff has a limited income and has limited resources. It is also clear that some provision should be made for him which would enable him to purchase suitable accommodation. There has been no evidence put on by the plaintiff as to what forms of alternative accommodation would be appropriate. In the absence of such material it makes it very difficult to make an assessment of what the plaintiff's needs are. However, in my view, having regard to the assets that he has, provision out of the Estate in the sum of $200,000.00, clear of his costs, would seem to me to enable the plaintiff to purchase suitable accommodation in the outer western suburbs of Sydney. The evidence was that his son and one daughter live in that area. I therefore assume that that is the area where he would like to remain living. 22 The orders that I make are:- 1. The 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 be designated as notional estate. 3. That the defendants pay the plaintiff's costs. 4. The defendants' costs be paid out of the Estate on the indemnity basis. ********************** Last Modified: 09/19/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.