Furner & Anor v Public Trustee [2002] NSWSC 473

New South Wales Supreme Court

CITATION : Furner & Anor v Public Trustee [2002] NSWSC 473 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2828/01 HEARING DATE(S) : 03/05/2002 JUDGMENT DATE : 31 May 2002

PARTIES : Trevor and Elizabether Furner v Public Trustee JUDGMENT OF : Master Macready at 1

COUNSEL : Ms. E. Holt for plaintiffs Mr J. Wilson for defendant SOLICITORS : McKenzie & Co for plaintiffs Mr P.J. Whitehead for defendant CATCHWORDS : Family Provision. Application by two persons who were part of the household of the deceased. Small legacies given. No matter of principle. DECISION : Paragraph 45

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

Master Macready

Friday 31 May 2002

2828/01 - TREVOR FURNER AND ELIZABETH FURNER v PUBLIC TRUSTEE – ESTATE OF MELBA MIDDLEBY JUDGMENT 1 MASTER: This is an application under the Family Provision Act 1982 in respect of the estate of the late Melba Middleby who died on 8 November 2000 aged 84 years. The deceased's husband died in 1988 and she had no children. The plaintiffs, who have at times during the deceased's life lived with her at her property in Newcastle, survived her. 2 The deceased made her last will on 7 August 1962. The defendant was appointed executor and trustee. In the events which have happened the estate was left to the deceased's husband's sister, Joan Oliver. Joan Oliver died on 24 March 2002. 3 The estate has been reduced to cash and amounts to $315,687 of which $30,000, with the consent of the plaintiffs, was distributed to Joan Oliver in January 2002. Costs have been incurred on both sides. The plaintiffs' costs are estimated at $46,000 and those of the defendant at $23,000. 4 I will deal with some of the family history by reference to the chronology. The deceased Melba Middleby was born on 23 February 1916. Trevor Furner, one of the plaintiffs, was born on 17 October 1940. In 1954 the plaintiff Trevor Furner met the deceased and her husband Bob. At that stage Trevor Furner was 14 years of age and he came into contact with the deceased and her husband because of a mutual interest in music. Elisabeth Furner, the plaintiff, was born on 27 December 1956. In 1958 the deceased purchased a tenor saxophone for Trevor and in the following year after staying with them he returned to Sydney. Trevor's father died in 1961. Trevor married for the first time in 1963 and he separated from his wife in 1979. In 1980 he commenced a relationship with Elisabeth and they lived together in Sydney. 5 It was in 1982 that Trevor on one of his trips to see the deceased and her husband Bob introduced his new partner, Elisabeth, to them. Elisabeth and Trevor had been having a difficult financial time and after an offer by the deceased and her husband in October 1983 they moved into a cabin which is located on the deceased's land at 19 Copeland Avenue, Tea Gardens. The cabin was separate from the main house but close to it. At that stage it had no hot water or power as that was only connected in 1985. In that year Trevor managed to sell some land, which he had been struggling to purchase at Menai, and received after the sale $10,000. In 1986 Trevor and Elisabeth moved out of the cabin at the deceased's home and moved into rented accommodation at Hawks Nest. The plaintiffs suggested in their evidence that they lived there full time in this period. 6 In 1988 the deceased's husband, Bob Middleby, died. Trevor and Elisabeth moved to Mayfield in 1989 and in November that year, as a result of difficulties which were occurring in their relationship, they separated. At this time Elisabeth moved in with the deceased for about six months. At the end of the six-month period Trevor and Elizabeth got back together again and moved to New Lambton for a while and then to Tenilba Bay. In 1996 and Trevor and Elisabeth married and in that year Trevor received approximately $40,000 from his mother's estate. That sum was used to open a takeaway food shop which they operated for some years before closing it down when it proved to be unsuccessful. 7 The deceased died on 8 November 2000 and probate was granted on 17 January 2001. The summons was filed within time and the beneficiary Joan Oliver died as I have mentioned on 24 March 2002. 8 For the plaintiffs to be eligible persons it is necessary that each of them at some stage to be part of the household of which the deceased was a member and at some time were wholly or partly dependent on the deceased. 9 I will first deal with the question of whether the plaintiffs were part of household of which the deceased was a member. As I have mentioned they moved into a cabin on the property in about October 1983. The cabin comprised a bedroom and a kitchen although there were no cooking facilities. In between the cabin on the main house was located a laundry and bathroom building and also a caravan. The laundry and bathroom were shared between all the occupants of the property. Trevor and Elisabeth normally slept in the cabin and the deceased and her husband normally slept in the house. The deceased's husband, Bob, would sometimes sleep in a caravan in between the two buildings when the deceased would stay up late at night composing music. Trevor and Elisabeth agreed to pay $40 per week rent to the deceased and her husband for the use of the cabin although it appears that they were so short of money they sometimes missed payments. The deceased and her husband provided meals and paid expenses such as food, electricity and telephone. At times Elizabeth cooked everyone's meals. Meals were usually eaten in the main building. 10 The plaintiff, Trevor, was a musician and because of this he had got to know the deceased and her husband. It seems that Trevor and deceased would sometimes be up late at night playing music. They were the late-night members of a somewhat extended family. Often on these occasions Bob, the deceased's husband, would sleep in the caravan and Trevor would sleep in the second bedroom of the main building. There was also another caravan on the block of land which was in fact quite a large block. That caravan was occupied by different people from time to time and there is no evidence to suggest that such persons shared meals with the deceased or took part in her life. 11 There was extensive discussion on the meaning of "household" in Kingsland v MacIndoe [1989] VR 273 and it seems clear that the word in its ordinary sense is as set out in the Oxford dictionary: "The holding or maintaining of a house or family; house keeping; domestic economy...the inmates of a house collectively; an organised family, including servants or attendants, dwelling in a house; a domestic establishment".