Perkins v Burke [2003] NSWSC 1167

New South Wales Supreme Court

CITATION : Perkins v Burke [2003] NSWSC 1167 HEARING DATE(S) : 04/12/2003 JUDGMENT DATE : 4 December 2003 JURISDICTION: Equity Division JUDGMENT OF : Master Macready at 1 DECISION :

CATCHWORDS : Family Provision. Application by adult son rejected by his mother at birth. Consideration of circumstances. Legacy in favour of plaintiff. PARTIES : Garry John Perkins v David Burke FILE NUMBER(S) : SC 5636/2002 COUNSEL : Mr J.S.Drummond for plaintiff Ms D. Coulton for defendant SOLICITORS : Peter Dawson & Associates Vizzone Ruggero & Associates

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

MASTER MACREADY

THURSDAY 4 DECEMBER 2003

5636/02 - GARRY JOHN PERKINS v DAVID BURKE - ESTATE OF BETTY MAY COWLE

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the Estate of the late Betty May Cowle, who died on 24 June 2002 aged sixty-seven years. 2 The deceased was survived by her de facto partner, the defendant, and her only son, the plaintiff. By her will made on 30 January 2002 she left the whole of her estate to the defendant and appointed him executor. Her estate consisted of a property being Unit 12/4 Banksia Street, Botany and cash of about $28,000. 3 The parties are agreed that the present net distributable estate, after allowing for funeral and sale expenses, is in the sum of $220,000. 4 The unit had been transferred to the defendant as a beneficiary and he has received about $22,000 in cash from the estate. He has also received the net rent from the unit in the order of $120 per week. The estimates of costs in this matter put the plaintiff's costs at $22,234 and the defendant's at $25,000. This would leave an amount of some $175,000 available for distribution if an award is made in favour of the plaintiff. 5 I will deal with a little of the family history. The plaintiff was born on 12 January 1959 and the defendant on 24 November 1944. At an early stage the plaintiff was left by his mother with family friends, first, the Clarksons in Waterloo, and then at Revesby and eventually the plaintiff in the early 1970s went to live with his grandparents at Bankstown. 6 In January 1980 the plaintiff was twenty-one years of age and it was the first contact that he had from his mother, the deceased, since the time when he was a baby and effectively had been abandoned by her. The plaintiff established contact with his mother and met her and over the following year had various meetings with her. 7 In about 1983 the deceased had met David Burke and apparently the contact between the plaintiff and the deceased ceased shortly prior to that, until 1991. It was in 1984 that the defendant and the deceased commenced their de facto relationship. They commenced to reside together at Picnic Point in a Housing Commission flat for some months and eventually came back ultimately to a flat in Brighton Boulevard, Bondi Beach which is rented and in which they lived until the death of the deceased. The defendant still at the moment resides in that flat. 8 In 1986 the plaintiff left his grandmother's home to live with Julie Hermon, whom he married on 24 February 1990. In 1991 the plaintiff's wife re-established contact with the deceased and this led to a happy reunion between the plaintiff and the deceased. There was regular contact for quite some time and according to the plaintiff he said several times a month with the occasional overnight stay. 9 In 1995 the plaintiff was retrenched from his full time employment and had to seek other employment to which I shall refer later. His father started to live with him in 1996 when he and his father purchased a property between them. The plaintiff only had $3,000 to contribute towards legal expenses and, accordingly, the property was bought in his name and his father's name and borrowings were made in order to enable the plaintiff to finance his share. Although no doubt the mortgage was given by both the owners the plaintiff assumed liability for the whole of the mortgage and made repayments thereafter. 10 In 1996 the plaintiff commenced work as a private investigator. 11 In 1997 there was an event which again broke down the relationship between the plaintiff and the deceased. The plaintiff did not call his mother on Mothers Day and late that evening she rang him and abused him for not having called her. He apologised and said he had only just got back from work. There is no reason not to accept the plaintiff's explanation of what happened. 12 The plaintiff tried to re-establish contact in 1997 at Christmastime when he rang up his mother to see if she would like to see the grandchildren and she completely rebuffed that approach by the plaintiff. 13 In 1998 the deceased inherited what was her husband's unit at Botany, ie, the property which is part of the estate. According to the plaintiff in the year 1999 at least for a while, he sent photographs and cards with contact details to the deceased. Although the defendant says he had the key to the mail box and cleared it, it may well be that these were received by the deceased, but after awhile, according to the plaintiff, they were returned to him. 14 It was on 30 January 2002 the deceased made her will and she died on 24 June 2002. On 6 August 2002 probate was granted and by this stage the defendant was aware that there was a claim by the plaintiff. The summons was filed on 3 December 2002 and in that month the defendant bought a property at Hill End for $85,000. He and the deceased had always intended to retire to Hill End by borrowing some $95,000 for the mortgage. Apparently it had been transferred to him shortly prior to this and, as I mentioned, it was transferred to him as a beneficiary. 15 The hearing was before me today and has been dealt with during the day. 16 The plaintiff clearly is an eligible person as there is no dispute that he is the son of the deceased. In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two-stage approach that a court must take. At page 209 it said: "The first question is, was the provision (if any) made for the applicant inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' et cetera were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance, et cetera, appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.