Martin v Brustolin [2004] NSWSC 1028

New South Wales Supreme Court

CITATION : Martin v Brustolin [2004] NSWSC 1028 HEARING DATE(S) : 3, 4 November 2004 JUDGMENT DATE : 12 November 2004 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION : Paragraph 73

CATCHWORDS : Family Provision. Application for provision by former de facto partner of deceased. Although she was left nothing in the will, executor provides ex gratia payment of a substantial proportion of estate to plaintiff. No further provision made. PARTIES : Ester Martin v Guiseppe Brustolin FILE NUMBER(S) : SC 2348/2001 COUNSEL : Mr J. Armfield for plaintiff Mr L. Ellison for defendant SOLICITORS : W.H Parsons for plaintiff Harris Wheeler for defendant

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

Master Macready

Friday 12 November 2004

2348/01 Ester Martin v Guiseppe Brustolin JUDGMENT 1 Master: This is the hearing of proceedings under the Family Provision Act 1982 (NSW) in respect of the estate of the late Mario Brustolin who died on 29 October 1999. The deceased was survived by the plaintiff who claims to have been his de facto partner and by the defendant, his brother. The deceased had no children. The will of the deceased 2 The deceased made his last will on 21 March 1980 under which he appointed his brother, the defendant his executor and gave to him the whole of his estate. Assets in the estate 3 At the date of his death the deceased owned a home at Merewether a Newcastle suburb, a vacant block of land and some other cash assets. The executor realised these assets and the funds received amounted to $317,204.67. The deceased also owned some land in Italy on which was erected a dilapidated house which was uninhabitable. The land is valued at $69,501.00. 4 The executor has incurred or will incur expenses including the cost of a memorial to be erected in Italy in the sum of $21,294.86. The net amount of the estate that has been collected and distributed by the executor is $361,410.81. Although no provision was made in the will of the deceased for the plaintiff after the sale of the deceased's house the defendant paid to the plaintiff the sum of $105,000.00 from the proceeds of sale. 5 Both parties have incurred costs in the proceedings. These have in some measure been increased as the plaintiff has retained different solicitors from time to time. The plaintiff's cost up to and including the conclusion of the hearing are estimated at $78,500.00 and those of the defendant at $39,500.00. This is a total of $118,000.00. The plaintiff's elder daughter Patricia has already paid some of the plaintiff's costs. Shortly after the payment from the defendant to the plaintiff the plaintiff paid the sum of $90,000.00 to her daughter. The daughter still retains $36,000.00 but the balance has been expended in meeting payments on account of the plaintiff's costs to date. The amount of the plaintiff's costs seems extraordinarily high. Indeed, the costs should have been substantially less given that the matter was reasonably simple, not that complex and only ran for one and a half days. This case stands as an illustration of an unfortunate but more frequent trend in matters of this nature in as far as costs of the proceedings escalating out of all proportion to the amount involved. It is hoped that in the near future the Court will be able to do something to make costs more proportional to the issues involved. 6 In addition to the payment that the executor made to the plaintiff, the plaintiff has also received a sum of $8500.00 from a joint bank account she had with the deceased at the date of his death. She also received some furniture of the deceased and the defendant gave her daughter a car valued at $10,000.00. A family history 7 The plaintiff was born in Estonia on 16 December 1928. The deceased was born in Italy on 5 June 1931 and his brother was also born in Italy in 1937. In 1944 during the course of escaping from her homeland the plaintiff was transported to Germany and placed in various labour camps. Having escaped from there she immigrated to Australia and arrived in Melbourne in 1949.