Mair v Hastings [2002] NSWSC 522

New South Wales Supreme Court

CITATION : Mair v Hastings [2002] NSWSC 522 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4175/01 HEARING DATE(S) : 31/05/2002 JUDGMENT DATE : 31 May 2002

PARTIES : Balthasar Mair v John Howard Hastings - Estate of the late Romano Giovanni Wallnofer JUDGMENT OF : Master Macready at 1

COUNSEL : Mr A. Enright for plaintiff Mr C. Simpson for defendant SOLICITORS : Jenny Bull & Company for plaintiff John H. Hastings for defendant CATCHWORDS : Family Provision. Claim by a de facto partner given a life interest in jointly owned real estate. Long relationship of 31 years and conributions to real estate. Plaintiff granted real estate in fee simple. DECISION : Paragraph 54

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

MASTER MACREADY

FRIDAY 31 MAY 2002

004175/01 - BALTHASAR MAIR v JOHN HOWARD HASTINGS - ESTATE OF THE LATE ROMANO GIOVANNI WALLNOFER

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Romano Giovanni Wallnofer who died on 5 April 2000 aged 63 years. 2 He was survived by the plaintiff, who submits that he lived with the deceased as his de facto partner at the date of death. The deceased had never married and had no children. 3 The deceased made his last will on 17 March 1999 and under the terms of that will he appointed the plaintiff and the defendant executor and gave some specific bequests. The first was to his nephew, Ronald Wallnofer, and his niece, Marina Stadler, in Italy of his interest in his estates in Italy which basically comprised some real estate. He also, in clause 3(b), gave a bequest to Ronald Wallnofer of his investment unit at 1/43 Barcom Street, Darlinghurst with an option for the plaintiff to be able to purchase it. 4 In clause 3(c) he gave his interest in his real estate known as 180 Paddington Street, Paddington upon trusts basically to provide for the plaintiff to be able to reside in the property. The estate only had a half interest in that property and the other half interest was owned by the plaintiff. The provision was a detailed one and, in particular, included the provision to enable the plaintiff during his lifetime to sell and have the funds reinvested in further real estate. 5 In clause 4 he gave the residue of his estate to the plaintiff after payment of all his debts. 6 The present situation in the estate is that there are four main assets. There is the Italian real estate worth $80,802, the unit at Darlinghurst worth $267,500 and the half interest of 180 Paddington Street worth $382,500. The residue of the estate has been got in and amounts to $105,071. 7 Plaintiff's costs have been incurred in the amount of $24,620, defendant's costs $33,040. There are probate costs of $8,550. There also are quite a number of liabilities and taking into account these costs (to which I referred) the total costs and liabilities in the estate amount to $198,142. It is clear, therefore, that there will be a shortfall of residue of at least about $94,000. 8 The practicality is that the Italian estate has in fact been taken by the nephew and the niece in Italy under Italian law and the executor cannot access that to apportion part of the debts to it or in any other way reach it. Accordingly from a practical point of view the shortfall of $94,000 will have to be borne pro rata by the Darlinghurst unit and a half share in Paddington Street. That means that Paddington Street will bear $55,000 and the unit $39,000. 9 I will deal with a little of the history of the relationship of the parties. The deceased was born in 1937 and the plaintiff in 1947, both of them in Italy. The deceased finished his high school in Italy in 1964 and the plaintiff, who studied architecture, finished his tertiary qualifications in 1968. In 1969 the plaintiff and the deceased met in Paris and they commenced to live together. At that stage the plaintiff was studying and the deceased was working as a hairdresser. In May 1971 they migrated to Australia together and they thereafter lived at Rose Bay and Paddington in rented accommodation. The plaintiff apparently is handy and accomplished in that area because apparently even in those days he renovated the Paddington house to obtain a discount in rent. The plaintiff worked as a waiter and a painter and the deceased as a hairdresser. 10 In 1974 the plaintiff obtained a position with Qantas as a flight steward. He had good qualifications because his language skills were much in demand by the airline. They continued to press him to take overseas postings which would improve his position but he declined for reasons which related to looking after the deceased. 11 It was in 1976 that the plaintiff and the deceased bought the house at 180 Paddington Street, Paddington for $43,000. In 1983 the plaintiff bought the unit in Darlinghurst Road. It was also in that year that the deceased was admitted to hospital for quite some period of time because of binge drinking. He had been an alcoholic for many years and needed treatment. 12 In 1985 the deceased was admitted to Langton Clinic for detoxification and in 1986 and 1987 the deceased had hip replacement operations. 13 There is a note made in 1987 by the deceased in which he promised to leave the plaintiff his share of the Paddington house and also his Australian property. 14 In 1989 the deceased bought the unit at Darlinghurst which is now in the estate. The purchase price was $115,000 and the money was raised in part by a mortgage on the parties' jointly owned home at Paddington Street. 15 The plaintiff turned his skills to renovating that unit. Also in that year the plaintiff bought another unit in that building in Womerah Lane, Darlinghurst for $143,000 on mortgage. He retired in 1991 from Qantas and used his redundancy to pay out the mortgage over the Womerah Lane unit. He sold his Darlinghurst Road unit in 1992 and bought another one in Womerah Lane. The deceased himself retired in 1994 on an invalid pension. 16 The plaintiff made a will in July 1998, leaving his half share of the Paddington house to the deceased plus certain other provisions. In 1999 the deceased made his will and I have referred to the details of that. 17 The deceased died on 5 April 2000 while the plaintiff was overseas and the plaintiff came back to find that he had died. Probate was granted in due course and the proceedings were commenced within time. 18 The plaintiff says that he was living in a de facto relationship with the deceased for some 31 years and at the date of his death. He also suggests that he was living in a close personal relationship with the deceased. 19 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. 20 That Act applies to domestic relationships which are defined in s 5 as follows:- "5. Domestic relationships