Lindsay Claude Buckmaster v Amy Jessica Dawson & Anor [2005] NSWSC 57

New South Wales Supreme Court

CITATION : Lindsay Claude Buckmaster v Amy Jessica Dawson & Anor [2005] NSWSC 57

HEARING DATE(S) : 7, 8, 9 February 2005

JUDGMENT DATE : 10 February 2005

JURISDICTION : Equity Division

JUDGMENT OF : Bergin J

DECISION : Provision made

CATCHWORDS : Application for provision pursuant to s 7 of the Family Provision Act 1982 by partner of 20 years - Whether applicant and the deceased in a de-facto relationship - Whether in all the circumstances provision should be made

Family Provision Act 1982 LEGISLATION CITED : Property (Relationships) Act 1984

Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Collins v McGain & Anor [2003] NSWCA 190 Luciano v Rosenblum (1985) 2 NSWLR 65 CASES CITED : Marinis v Jeweller [2000] NSWCA 282 Marshall v Carruthers; Marshall v Marshall [2002] NSWCA 47 Permanent Trustee Co Ltd v Frazer (1995) 36 NSWLR 24 Singer v Berghouse (1994) 181 CLR 201

Lindsay Claude Buckmaster (Plaintiff) PARTIES : Amy Jessica Dawson (1st Defendant) Simon Guy Dawson (2nd Defendant)

FILE NUMBER(S) : SC 04866/2004

P. Hallen SC (Plaintiff) COUNSEL : J. Robson SC (Defendant)

Uther Webster & Evans (Plaintiff) SOLICITORS : Delaney Lawyers (Defendants)

LOWER COURT JURISDICTION :

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

BERGIN J

10 FEBRUARY 2005

4866/04 LINDSAY CLAUDE BUCKMASTER V AMY JESSICA DAWSON & SIMON GUY DAWSON JUDGMENT 1 This is an application by the plaintiff, Lindsay Claude Buckmaster, for an order pursuant to section 7 of the Family Provision Act 1982 (the Act) that provision be made for his maintenance and advancement in life out of the estate of Helen Kay Dawson (the deceased) in addition to the provision made for him in the last will and testament of the deceased dated 17 May 2000 (the Will). 2 The application was heard on 7, 8 and 9 February 2005 when Mr P Hallen SC appeared for the plaintiff and Mr J Robson SC appeared for the defendants who are the children of the deceased and executors of the Will. 3 The plaintiff was born on 17 September 1942 and is presently 62 years of age. The deceased was born in 1945 and married Guy Dawson in 1969. The deceased and Mr Dawson separated in 1979 and divorced in 1981. Simon Guy Dawson, the second defendant and co-executor of, was born on 13 November 1973 and is presently 31 years of age. Amy Jessica Dawson, the first defendant and other executor, was born on 15 April 1976 and is presently 28 years of age. 4 The plaintiff and the deceased met in 1983 and commenced living together in the deceased's townhouse in Waverton in May 1984. They lived with the defendants, the first defendant being at that time aged 8 years and the second defendant being aged 10 years. It is clear that the defendants had problems adjusting to this new situation exacerbated by the limited space in the townhouse. The deceased and the plaintiff decided that they would look for larger premises to accommodate the children and themselves. Early in 1987 the townhouse was sold and the plaintiff purchased the property at 14 Wallace Street Willoughby (the property) with the proceeds of sale of the townhouse and a bank loan. The property has always been in the deceased's name. 5 There is evidence of longstanding incompatibility between the plaintiff and the second defendant in particular. The second defendant went to Queensland to live with his father for two to three years in the 1980s. Mr Dawson had remarried and it is apparent that he and his wife had two children, boys, with whom the second defendant had a good relationship. Although the second defendant returned to live in the property after that time in Queensland, he moved out twice before finally leaving home in 1996. 6 The first defendant seems to have had less difficulty in accommodating the change of situation after the plaintiff began living with the deceased, although the relationship between the first defendant and the plaintiff has, it seems, deteriorated in more recent times. 7 The relationship between the plaintiff and the deceased lasted 21 years until her death on 2 March 2004. For 20 of those years they were living together. In September 2000 the deceased was diagnosed with ovarian cancer. The course of the deceased's illness and treatment was clearly a difficult and traumatic time, not only for the deceased but also the defendants and the plaintiff. There is no issue that the plaintiff was the principal carer of the deceased during her illness to the time of her demise. Perhaps the best description of the relationship is that written by the deceased in March 2003 in a "Blessings Book" as follows: Lindsay-my rock and friend for almost 20 years, who has always been there for me – in good & bad times, and especially over the last few months during my illness. He has suffered with me and given me so much loving care-I shall never be able to thank him enough. 8 The defendants did not concede the existence of a de facto relationship between the plaintiff and the deceased. The first defendant gave evidence that her mother informed her that her relationship with the plaintiff was in the nature of a friendship. However the plaintiff gave evidence of an intimate sexual relationship during his life with the plaintiff that was not challenged. For whatever reason the conversation between the first defendant and the deceased occurred and notwithstanding such conversation there are a number of factors that point irresistibly to a conclusion that the plaintiff and the deceased were in a de facto relationship within the statutory meaning of that term: s 6 of the Act; ss 4 & 5 of the Property (Relationships) Act 1984. 9 The duration of the relationship of 20 years is not in issue. There is no suggestion that either the plaintiff or the deceased was in a relationship with any other person at any time during that time. The relationship appears to have been strong and not subject to any real suggestion of a breaking down at any stage. Although the second defendant suggested in his evidence that the plaintiff moved out of the property, it seems to me that the plaintiff's absence living on his boat from time to time was to cater for his work and the exigencies of the adjustment period after he moved in to live with the plaintiff and the children. I am not satisfied that there was any breakdown in the relationship between the plaintiff and the deceased during the 20 year period. 10 There is no dispute that the plaintiff and the deceased lived together in a home owned by the deceased, firstly at Waverton and then at the property. I am satisfied that the plaintiff shared a bedroom with the deceased and otherwise treated the property as his own. The plaintiff made no monetary contribution to the purchase of the property, but I accept that he did quite a deal of work both by way of maintenance and refurbishment of the property, although a number of tradesmen also provided services in respect of the refurbishment and maintenance. 11 The plaintiff and the deceased did not have any mutual bank accounts, but there was a degree of financial inter-relationship between them. I accept that the plaintiff shared expenses with the deceased from time to time, including restaurant expenses, telephone accounts and other household expenses and that the plaintiff purchased various household items including a fridge. 12 The evidence including the letters written by the deceased to her mother (Ex. A), the Blessings Book (Ex B), and the detail provided by the plaintiff, demonstrates a high degree of mutual commitment between the plaintiff and the deceased to a shared life. In this regard the evidence of a number of witnesses called by the plaintiff is corroborative: (Sally Elizabeth Buxton; Dorothy Atkins; Margaret Anne Cant; Jean Kubale; Pamela Helen Broklesby and Robin Frederick Broklesby and Dr Brian Morton). 13 It is also clear that the plaintiff played some role in the lives of the defendants when they were young. There is evidence both oral and documentary of him going on outings with them and assisting in school arrangements. This aspect of the plaintiff's role was somewhat limited in part by reason of the difficulty in their relationship, particularly with the second defendant. 14 The deceased described the plaintiff to her general practitioner as her "partner". Although it was suggested that the deceased was careful not to describe herself as being in a de facto relationship, she did so in an immigration card on an international flight. However there is other evidence in which she had the opportunity to do so and chose to describe herself as "divorced". Irrespective of the way in which the deceased preferred to describe the relationship I am satisfied that the plaintiff and the deceased were in a de facto relationship and that the plaintiff is an eligible person to make the application: s 6 (1) of the Act. 15 The next question is whether an order ought be made under s 7 of the Act for provision out of the estate. It is agreed that the net distributable estate is $2.5 million. Each of the defendants has received approximately $760,000. The property is valued at $900,000. The Will provided a legacy of $50,000 for the plaintiff. It is conceded by the defendants that such legacy should be increased. 16 The evidence establishes that the day prior to her demise, the deceased had a conversation with the first defendant's partner, Mr Leon Allot, in which she suggested that the plaintiff should have a lump-sum cash payment of approximately $130,000 or $150,000 immediately, or alternatively, take such amount from the proceeds of the sale of the property. There was a plan for the deceased to see her solicitor to make a new will, but she became too ill and died before that could occur. The first defendant gave evidence in cross-examination that just prior to her demise the deceased was talking about the plaintiff "being able to stay in the house after she died". The first defendant gave evidence that the deceased said she was "worried that Lindsay would not have a place to live and that he would need time to get settled and that she was showing him that I understood that we - that she wanted him to stay in the house until he needed to leave" (tr. 65). 17 In deciding whether provision should be made out of the estate the often cited passage in Singer v Berghouse (1994) 181 CLR 201 at 209-210 is applicable: 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' etc. were explained in Bosch v Perpetual Trustee Co Ltd . The determination of the first stage in the two-stage process calls for an assessment of whether provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc. 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the Court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which Court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors. 18 It was submitted that at the first stage of the process regard should be had to prevailing community standards. In support of this submission reliance was placed on the following passage from the judgement of Sheller JA in Permanent Trustee Co Ltd v Frazer (1995) 36 NSWLR 24 at 46: In deciding whether the provision for an eligible person is in adequate for that person's proper maintenance, education or advancement in life the Court should be guided by consideration of the provision which, in accordance with prevailing community standards of what is right and appropriate and in the certain stances mentioned in the Family Provision Act and then of obtaining, ought to be made in favour of the eligible person. 19 It was submitted that Sheller JA's reference to the circumstances mentioned in the Act was a reference to the circumstances set out in s 9(3) of the Act which provides: (3) In determining what provision (if any) ought to be made in favour of an eligible person out of the estate or notional estate of a deceased person, the Court may take into consideration: (a) any contribution made by the eligible person, whether of a financial nature or not and whether by way of providing services of any kind or in any other manner, being a contribution directly or indirectly to: (i) the acquisition, conservation or improvement of property of the deceased person, or (ii) the welfare of the deceased person, including a contribution is a homemaker, (b) the character and conduct of the eligible person before and after the death of the deceased person, (c) circumstances existing before and after the death of the deceased person, and (d) any other matter which it considers relevant in the circumstances. 20 In Collins v McGain & Anor [2003] NSWCA 190, Tobias JA, with whom Beazley and Hodgson JJA agreed, said: 42. There can be no question that, at least as part of the first stage of the process, the question of whether the eligible person has a relevant need of maintenance etc is a proper enquiry. This is so as the proper level of maintenance etc appropriate for an eligible person in all the circumstances clearly calls for a consideration of his or her needs. However, the question of needs must not be too narrowly focused. It must, in my view, take into account, depending upon the particular circumstances of the case, present and future needs including the need to guard against unforeseen contingencies. … 47. As I have observed, the issue of need is not confined to whether or not an eligible person has, at the date of hearing, a then need for financial assistance with respect to his maintenance etc. It is a broader concept. This is so because the question of needs must be addressed in the context of the statutory requirement of what is "proper maintenance etc" of the eligible person. It is the cause of that context that, in the present case, the "proper maintenance etc" of the appellant required consideration to guard against the contingency to which I have referred.