Reynolds v Stanley and Anor [2004] NSWSC 685

New South Wales Supreme Court

CITATION : Reynolds v Stanley and Anor [2004] NSWSC 685 HEARING DATE(S) : Tuesday 27 July 2004 JUDGMENT DATE : 9 August 2004 JURISDICTION: Equity JUDGMENT OF : Acting Master Berecry at 1 DECISION : See paragraph 74

CATCHWORDS : FAMILY PROVISION -- widow -- long and happy marriage -- right to reside -- small pecunary legacy -- inadequate provision -- competing needs -- beneficiary with small income but valuable realty -- widow with no realty but large income -- no equilibrium LEGISLATION CITED : Family Provision Act 1982 Bladwell v Davies [2004] NSWCA 170 Elliott v Elliott, unreported, Powell J NSWSC, 7 March 1991 Golosky v Golosky, unreported, NSWCA, 5 October 1998 CASES CITED : Harvey v Delaney [2003] NSWSC 589 Luciano v Rosenblum (1985) 2 NSWLR 65 Marshall v Carruthers [2002] NSWCA 47 O'Loughlin v Low [2002] NSWSC 222 Singer v Berghouse (1994) 181 CLR 201 Lorraine Eve Reynolds - plaintiff PARTIES : Judith Mary Stanley - first defendant Christine Harrison - second defendant FILE NUMBER(S) : SC 3928/03 COUNSEL : Blackburn - Hart for the plaintiff Ellison for the defendants SOLICITORS : Fisher Chapman Solicitors for the plaintiff Mark Stenberg & Associates Solicitors for the defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Acting Master Berecry

Monday 9 August 2004

3928/03 Lorraine Eve Reynolds v Judith Mary Stanley and Anor JUDGMENT 1 MASTER: On 22 July 2003 the plaintiff filed a summons seeking an order for her maintenance and advancement out of the estate of the late Raymond George Reynolds pursuant to s 7 of the Family Provision Act 1982 (the Act). 2 The deceased died on 8 April 2002. The application was brought within time. Background 3 The plaintiff and the deceased married on 20 December 1974. It was the second marriage for the deceased and it would appear to be the first marriage of the plaintiff. The deceased was a judge of the Supreme Court of New South Wales and the plaintiff was his associate. 4 Prior to the marriage the deceased lived in what was formerly the family home at Turramurra. The plaintiff resided in a unit owned by her in Elizabeth Bay. Both sold their respective properties prior to the marriage. The deceased used the proceeds of sale from the Turramurra property to purchase a terrace at Paddington. The plaintiff received $20,000.00 from the proceeds of sale of her Elizabeth Bay unit. She placed those funds in a bank account and used them for investment purposes. 5 Throughout the course of the marriage both the plaintiff and the deceased maintained separate bank accounts and at no stage did they hold joint accounts. 6 In 1977 the Paddington property was sold and the deceased purchased 58 John Street, Woollahra. On that site the present dwelling was constructed. They moved into the Woollahra property in 1979. The deceased provided all the funds for the construction of the dwelling on the property. 7 In 1983 the deceased retired as a judge of the Court of Appeal, however, he acted as an arbitrator and also did consultancy work thereafter. It is unclear how long he continued to act as an arbitrator or consultant. During this period the plaintiff provided secretarial services to him without charge to the deceased. She also retired in 1983. 8 During the marriage they made several overseas trips. Most of these trips were for holidays, but on occasions in his capacity as a consultant the deceased made overseas trips in the company of the plaintiff. 9 There were two children of the deceased's first marriage. Those children are the defendants in these proceedings. 10 The house constructed at Woollahra was a two bedroom home with a galley kitchen and a combine lounge room/dining area and small courtyards. The dimensions of the block of land are 31 feet by 120 feet. 11 The plaintiff still does the gardening although she does get in paid assistance for some of the work. The plaintiff's evidence is that she is able to maintain the house and to perform household tasks and is active in the garden. Exhibit A, the report of Dr Slezak, mentions that the plaintiff walks up to four kilometres a day. He was not cross examined in relation to this statement, nor was the plaintiff cross examined on it. 12 The deceased paid for the construction of the dwelling and paid subsequent maintenance of the property, together with rates and insurance premiums. 13 At the time the deceased died he and the plaintiff had been married for approximately 28 years. In 1999 he had a heavy fall which required hospitalisation. As a result of that fall the deceased required care for the remainder of his life. The plaintiff's evidence was that she provided that care over the last three years of his life. There is not an issue between the parties concerning the quality of the marriage. The evidence is that it was a happy marriage, in the plaintiff's words they 'were completely devoted and very loving to each other.' The first defendant, Judith Stanley, in her affidavit of 16 October 2003 at paragraph 18 states: "The deceased was a generous husband, cared for the plaintiff and was a devoted and loyal husband."