New South Wales Supreme Court CITATION : Przewoznik v Scott [2005] NSWSC 74 HEARING DATE(S) : 4 February 2005 JUDGMENT DATE : 4 February 2005 JUDGMENT OF : McDougall J at 1 DECISION : See paras [41], [42], [46] and [47] of judgment CATCHWORDS : SUCCESSION - family provision - whether plaintiff an eligible person under s 6(1) of the Family Provision Act 1982 - whether plaintiff and deceased living together in a de facto relationship - whether plaintiff and deceased living together in a close personal relationship - whether "living together" requires continuous cohabitation - quantum of provision - no question of principle Family Provision Act 1982 LEGISLATION CITED : Property (Relationships) Act 1984 Emilia Przewoznik (Plaintiff) PARTIES : Amelia Mary Scott (Defendant) Estate of the Late Mate Mihovilcevic FILE NUMBER(S) : SC 1439/03 R D Wilson (Plaintiff) COUNSEL : D L Warren (Defendant) John Fisicaro & Co (Plaintiff) SOLICITORS : Galluzzo Golotta Andriano (Defendant) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION McDOUGALL J Friday 4 February 2005 Ex tempore (Revised 14 February 2005) 1439/04 EMILIA PRZEWOZNIK v AMELIA MARY SCOTT (ESTATE OF THE LATE MATE MIHOVILCEVIC) JUDGMENT 1 HIS HONOUR: The plaintiff claims provision under the Family Provision Act 1982 out of the estate of Mate Mihovilcevic deceased. The deceased by his will made on 2 July 1998 appointed his former wife, the defendant, as executrix and trustee and gave the whole of his estate to his daughter, Anna Mihovilcevic. 2 The plaintiff says that she is an eligible person because, as that expression is defined in para 6(1) of the Family Provision Act , she was a person: "… with whom the deceased person was living in a domestic relationship at the time of the deceased person's death." 3 That definition takes one to the definition of "domestic relationship" in the Property (Relationships) Act 1984. By s 5(1) of that Act, a domestic relationship is: "(a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care." 4 That leads in turn to the definition of "de facto relationship" in s 4(1): "A relationship between two adult persons who live together as a couple and who are not married to one another or related by family." 5 The deceased separated from the defendant in 1992 and they were divorced in 1993 or 1994. The plaintiff separated from her husband many years ago and they were divorced approximately thirty years ago. Her former husband (as by then he was) died in 1994. 6 The plaintiff's case is that she met the deceased in about August 1997 at a club in Bankstown. She says that they became good friends and saw each other every week. After some time, the deceased came to the plaintiff's place every week for dinner. Thereafter, their relationship became closer and, she says, the deceased began to stay overnight. 7 The evidence suggests that a strong, including sexual, relationship developed between the plaintiff and the deceased prior to the deceased's return to Croatia on holiday in 1999. The plaintiff's evidence is that, before the deceased's visit to Croatia, he would stay with her on weekends, at which stage she would cook for him and give him food to take home. She says, and it appears to be common ground, that the deceased's food required special attention because there were a number of items that he was not allowed to eat. 8 The plaintiff says that at some time in 1998 she would go to the deceased's house, staying there occasionally in the beginning, but with increasing frequency over time. She says that whenever the deceased was sick (which apparently was not infrequent) they would stay together and she would, at his request, look after him. This included ensuring that he took the substantial quantities of medication that had been prescribed for him. 9 The plaintiff gave evidence of services that, she says, she provided for the deceased at his house. They included, she says, cleaning the kitchen and bathroom, vacuuming the floor and washing his clothes. That evidence is contested by the defendant. The defendant's case is that the deceased's house was not in a clean and tidy state on occasions when various witnesses visited. 10 It is, I think, clear that, after the deceased's return from Croatia in 1999, the relationship between him and the plaintiff became even closer. I think that the better inference from the evidence is that, at least from the plaintiff's point of view, they were a couple even though by then they were still not spending all their time together. Nonetheless, it is equally apparent from utterances made by the deceased to others, that he did not regard himself and the plaintiff as a couple. 11 There is no evidence of financial or other dependency as between the plaintiff and the deceased. Thus, although Mr R D Wilson of Counsel, who appeared for the plaintiff, said that she put her case also on the basis of para (b) of the definition of "eligible person" in the Family Provision Act, I do not think that she falls within that paragraph because the requirement of subparagraph (i) - that she had been at any particular time wholly or partly dependent on the deceased - has not been shown to exist. In this context, dependency means something more than emotional dependency. 12 I return to the narrative. The plaintiff's case, which in substance I accept, is that she and the deceased, and the deceased and her children, became closer, particularly after the Croatia visit in 1999, and that they attended family occasions together. She says that they had planned to have a holiday together, but this did not occur because of the deceased's state of health. 13 She says, further, that on a number of occasions she and the deceased discussed living together, upon the basis that he would fix his house and sell it, and that he would then pay the interest on a loan on a property at Katoomba not owned by the deceased. (The evidence shows that the plaintiff and her son Frank own a house at Katoomba between them. The son has assisted by paying off the loan on the house. The house is not tenanted. The parties are agreed that its gross value is $280,000.) 14 Although I accept the plaintiff's evidence that the deceased did discuss marriage with her, it is again apparent, from what the deceased told other people, that he did not make the same observations to them. The truth, I think, is that the deceased gave the plaintiff to understand one set of things, and his friends and family another. It may be, although I do not go so far to say, that the deceased was, as one might put it, stringing the plaintiff along to some extent. 15 If the plaintiff and the deceased are to be regarded as a de facto couple for the purposes of the Property (Relationships) Act , then it was necessary that they lived together as a couple. That means, I think, that even if they did not live in the one property all the time, or even if they did not live together all the time, the extent of their cohabitation and of their emotional dependence and commitment, must have been such as to have shown to people, to the world, that they were to be regarded as a couple. 16 I do not think that the evidence goes so far. The relationship was of a relatively short duration (not, of itself, a determinative factor). There is no real evidence of the pooling or sharing of resources. Rather, the evidence shows, the deceased had his house and the plaintiff has hers (I will return to the nature of her interest in due course) and that they lived in one or the other as convenience suited. But even so, I do not think that the evidence justifies a conclusion that their cohabitation in one property or the other was continuous. 17 There is no evidence that the parties took holidays together, or that they otherwise organised their lives as a couple. The only exception to this last proposition is that, as I have said, they went to family and social outings together. Nonetheless, looking at the matter as a whole, but taking into account the factors listed in s 4(2) of the Property (Relationships) Act, I am not satisfied that the degree of interdependence and emotional commitment that has been shown is sufficient to justify the conclusion that the plaintiff and the deceased lived together as a couple. 18 That means that, if the plaintiff's case is to succeed, she must show that there subsisted between her and the deceased a close personal relationship of the kind described in s 5(1)(b) of the Property (Relationships) Act. It is clear that that is a relationship other than one of marriage or a de facto relationship. The dividing point, I think, is that for a relationship to fall within paragraph (b), it need not exhibit the degree of mutual commitment and interdependence that are necessary to justify the conclusion that it is a de facto relationship. What is required is that there be adult persons, that they be living together and that one, or each, of them provides the other with domestic support and personal care. 19 There is no doubt that the plaintiff and the deceased were adult persons and there is no doubt, on the plaintiff's virtually unchallenged (and corroborated) evidence, that she provided the deceased with domestic support and personal care. In this context, I should mention that although the plaintiff was cross-examined at some length on her evidence, Mr Warren of Counsel, who appeared for the defendant, did not submit that she was anything other than a witness on whose evidence substantial reliance could be placed. In any event, as I have indicated, I have concluded that in substance I can accept the plaintiff as a witness of truth. 20 The real question is, therefore, whether the plaintiff and the deceased were living together for the purposes of para (b) of the definition of domestic relationship, and if, once again taking into account all the circumstances, it is appropriate to categorise that relationship as a close personal relationship. 21 The authorities make it clear that parties may be in a de facto relationship, or (under a former version of s 6 of the Family Provision Act ) living together as man and wife on a bona fide domestic basis, even though their cohabitation is not continuous and even though it occurs in different premises. I see no basis for concluding that the words "living together" in s 5(1)(b) of the Property (Relationships) Act should be given any substantially different meaning to the words "live together" in s 4(1)(a). I therefore conclude that the evidence is capable of supporting the conclusion that the plaintiff and the deceased were, for a period of time, at least from the second half of 1999 until the deceased's death on 1 December 2003, living together. Further, there being no real evidence to controvert that, I think that I should conclude that they were living together. 22 I have adverted to some of the evidence. The plaintiff's evidence is that, as time went by, after the deceased's return from Croatia in 1999, they spent more time together and they went out as a couple more often together. Indeed, the deceased at all material times kept clothing and other personal possessions at the plaintiff's house; and he was living at the plaintiff's house on the day of his death. His car is still in her garage. She still has his wallet. She still has his clothes in her bedroom. 23 In those circumstances, therefore, I conclude that the plaintiff and the deceased were living together, at least from the second half of 1999 up until the deceased's death. 24 Further, when one looks at the evidence of the totality of the relationship between the plaintiff and the deceased, I think it is impossible to conclude that it was anything other than a close personal relationship. There is, as I have said, some evidence to suggest that the deceased had perhaps a lighter or lesser view of the relationship than did the plaintiff. There is evidence, which was not challenged and which therefore I think I should accept, that even during the subsistence of his relationship with the plaintiff, the deceased had relationships with other women. However, none of that evidence destroys the conclusion that the relationship between the plaintiff and the deceased was a close personal one, or the conclusion that they were living together. At most, it would strengthen the view that may be available on the evidence that the deceased, as I have said, might have been stringing the plaintiff along to some extent. 25 I therefore conclude that the relationship between the plaintiff and the deceased was a domestic relationship and that the plaintiff is an eligible person within para (a)(2) of that definition of that term in the Family Provision Act. 26 That makes it necessary to consider the question of the provision, if any, that should be made for the plaintiff. 27 The value of the estate is agreed as being, net, about $876,000. From that there must be deducted (subject to any application or order to the contrary) the costs of these proceedings. On the plaintiff's side, those costs are estimated at about $26,000. On the defendant's side, those costs are estimated at about $46,000. It is, I think, appropriate to proceed on the basis that the net distributable estate will be, in round figures, $800,000. 28 The only eligible person other than the plaintiff, and the person to whom, as I have said, the deceased gave the whole of his estate, is Anna Mihovilcevic. I am satisfied from the evidence that, with the exception of a period when the deceased and her mother separated, the deceased and Anna (if I can call her that without being patronising or demeaning) enjoyed a close relationship of a kind that one would expect between father and daughter. It is apparent that they maintained close and regular contact. 29 The deceased provided for Anna, including by paying her HECS liabilities. It is apparent that, although Anna has no need to justify the deceased's provision in her favour, there was every reason of love and affection for him to make his will in the way that he did. 30 Anna's circumstances in life are that she is a graduate accountant, who either is, or will soon be, a chartered accountant. Her assets, apart from her interest in the deceased's estate, are not substantial. However, she has the ability to earn a good income (due in part to the entirely understandable decision of the deceased to provide for her education), and I have no doubt that, leaving aside the exigencies and unforeseeable contingencies of life, she is likely to remain in good employment and to be capable of earning a good income to support herself in a completely adequate way. 31 The plaintiff's position is that she lives in a house at Bankstown, which is the property of her children. As I understand it, that house was owned either by her former husband and her, or by her former husband, and that as a result of the divorce and property settlement proceedings, and as a result of the way that her former husband's estate has been distributed, that house is now vested in her children. She occupies it rent free, but she pays rates and certain other outgoings in respect of it. Her only income is the pension. Her assets include her half share in the Katoomba property, valued at $140,000, and about $5,000 of personal effects and money at bank. She says, and I can understand it, that being a pensioner she lives a simple life. 32 The plaintiff has said that she would like a number of things. One of those includes the purchase of accommodation nearer to where at least some of her children live. Her evidence is that such accommodation could be purchased for (including stamp duty and legal costs) approximately $350,000. She says further that she would like to have a holiday, returning to her native country for a visit, and that she would like to learn to drive, and purchase a small car. 33 There is a substantial difference between wants and needs. In the present case, I think, the circumstances dictate that I should consider the needs of the plaintiff. In doing so, I must bear in mind that the relationship between her and the deceased was of relatively short duration. Although there is no doubt that relationship subsisted, and was close, prior to the deceased's visit to Croatia in mid-1999, I think the better view of the relationship is that it should be viewed, for the purposes of the Act, as a relationship subsisting from the time of his return until the time of his death - in round figures, four years. 34 The contest is therefore one between a daughter, whose ability to look after herself has been substantially ensured by the good education that she has had on the one hand, and the plaintiff, whose ability to look after herself is minimal, on the other. It is not, however, as though the plaintiff is without assets. If the property at Katoomba were to be sold, her share would be between $130,000 and $140,000 net. I do not think that it is appropriate for the plaintiff to say in substance that she is entitled to retain that property in specie and to look to the estate for the entirety of her needs. 35 The real question at issue is whether the plaintiff needs other accommodation and, if she does, whether it is appropriate that such accommodation be funded out of the estate. In the witness box she expressed some concern that she might be put out of the house at Bankstown. That was not because of the relationship between her and her children. On the contrary, it is apparent that the relationship is close and loving. Amongst other things, the plaintiff looks after her grandchildren, caring for them at the Bankstown property, from time to time. 36 Rather, the plaintiff said, her concern was that the in-laws might try and force her children to sell the property, which would mean that her present tenure would come to an end. 37 I accept that this is a contingency, and I accept that it is a fear that the plaintiff actually harbours. Nonetheless, there is no basis for concluding that it is a real contingency, in the sense that it is one which may be said to be reasonably likely to happen. Far less, I think, could I conclude that it is one that is more likely not to happen. 38 The reality, I think, is that the plaintiff should be regarded as having the benefit, although not the right, of occupancy of the Bankstown property for the foreseeable future, but subject to the risk that the benefit might come to an end at some unforeseeable time in the future. There is no evidence that the Bankstown property is inadequate or inappropriate for the plaintiff's needs. 39 On that basis, I do not think that it is appropriate for the plaintiff to obtain sufficient provision out of the estate such that, either with or without the sale of the Katoomba property, and the realisation of her interest in it, she could purchase for herself other accommodation. I think that the appropriate order is one that, when taken into account with the realisation of the plaintiff's interest in the Katoomba property, will ensure that she has available to her a substantial fund of money, both to enable her to enjoy her life to a reasonable extent, and to provide her with a substantial fund to guard against the contingencies that necessarily attend a person of her age in her position. 40 The evaluation of the amount of provision is not a scientific matter. It is something that requires the balancing of considerations, the value to be attributed to it being something upon which minds may reasonably differ. I have come to the conclusion that the plaintiff's needs would be satisfied, at least in terms of the Family Provision Act, by the provision of a legacy out of the estate of the deceased in the sum of $150,000. 41 I therefore order that the plaintiff receive out of the estate of Mate Mihovilcevic deceased a legacy in the sum of $150,000. 42 I order that interest on the said legacy not run if it be paid within twenty-eight days of today's date. 43 I will hear the parties on costs and, if required, on whether what is prima facie the usual order should be made. 44 WARREN: I have nothing to say. 45 WILSON: I have nothing to say, your Honour. 46 HIS HONOUR: I order that the plaintiff's costs on the common fund basis and the defendant's costs on the trustee basis be paid out of the estate of the deceased. 47 The exhibits are to be retained for 28 days and thereafter dealt with in accordance with the Rules. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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