Tsecouras v Price [2006] NSWSC 701

New South Wales Supreme Court

CITATION : Tsecouras v Price [2006] NSWSC 701

HEARING DATE(S) : 3, 4, 5 July 2006

JUDGMENT DATE : 6 July 2006

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

EX TEMPORE JUDGMENT DATE : 07/06/2006

DECISION : Paragraph 90

CATCHWORDS : Family Provision. Application under Family Provision Act by alleged de facto partner. Proceeding dismissed.

PARTIES : Peter Tsecouras v Anne Price

FILE NUMBER(S) : SC 2280/05

COUNSEL : Mr A.R Lakeman for defendant

SOLICITORS : Hogan Geikie Poole for defendant

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

ASSOCIATE JUSTICE MACREADY

THURSDAY 6 JULY 2006

2280/05 - PETER TSECOURAS v ANNE PRICE

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Diana Rosemary Keefe who died on 23 October 2003 aged eighty-one years. She was a single lady with no children and had not married. 2 The plaintiff is also a single man who appears to have no children and who claims to have been in a de facto relationship with the deceased. He appears in person. The Will of the Deceased 3 The deceased made her will on 24 July 1992. Under that will she left her estate to eight friends equally and appointed one of them, the defendant Anne Price, as executrix. Assets in the Estate 4 The estate consisted of the deceased's home at 38 Glenview Street, Paddington worth $1.2 million and other assets worth $79,456. The estate was realised and was distributed on 3 June 2004 before these proceedings were commenced. The proceedings were commenced within time. Warning of the distribution was given to the plaintiff. Family History 5 The deceased was born on 23 June 1922 and the plaintiff was born on 2 February 1936 in Greece. In 1945 Arthur Brown, one of the witnesses for the defendant, met the deceased. Another witness, a beneficiary Anne Price, who is also the executrix, met the deceased in the 1950s. The deceased had always lived at 38 Glenview Street, Paddington with her mother. 6 In 1955 Demetra Tsiamperlis came to live in the house next door to the deceased. At that stage the deceased's mother was still alive and there was a close friendship between the deceased, her mother and Mrs Tsiamperlis. 7 It was either in 1958 or 1960 - and the difference is immaterial - that the plaintiff came to be a boarder at the deceased's house. He had come from Greece in December 1958 and he first stayed as a boarder in a room at Ms Tsiamperlis' property. After a few weeks he moved, and then came back again, by which time his room had been re-let. Arrangements were then made for him to become a boarder in the house of the deceased and her mother. 8 It seems clear that he continued there until May 1975. At that stage he left and went overseas for some six months because his father was ill. On his return to Australia there was no place available to him and he resided elsewhere. 9 At that time Lawrence (John) Moore, a godson of the deceased, was boarding with the deceased, he having commenced to board there in September 1975. Later he boarded there again between 1980 and 1981. 10 It is suggested by the plaintiff that between January 1983 and April 1983 he moved back in to the premises. This is not conceded and I will return to it later. However, what is perfectly clear is that in April 1983 he moved to a home at Zetland. That home had been purchased by him with his brother Con and the plaintiff has lived there ever since. 11 The deceased, as I have said, made her will on 24 July 1992 and died on 23 October 2003. 12 Between December 2003 and January 2004 the plaintiff gave instructions to his lawyers to act on his behalf and obtain advice from counsel at that stage. 13 A grant of probate was obtained in February 2004. 14 On 4 February 2004 there was a letter from the defendant's solicitors to the plaintiff's solicitors saying there was an intention to publish a notice of intent to distribute. 15 On 23 February 2004 the plaintiff filed a summons seeking orders against the defendant's solicitors. A notice of intended distribution was published in the usual form on 25 February 2004. Following representations from the solicitors the proceedings against them were discontinued by the plaintiff on 9 March 2004. 16 On 3 June 2004 the administration of the estate of the deceased was completed by distribution. At the end of 2004 and early 2005 the plaintiff sought further advice from Hunt Bros, Solicitors and on 6 April 2005 he commenced these proceedings, some three weeks before the time limit for the commencement of the proceedings expired. Eligibility 17 The plaintiff claims to be the de facto partner of the deceased. The plaintiff presented no case that he was involved in a close personal relationship with the deceased at the date of death. Although he did not present a case as having been part of the household of the deceased and partly dependent, I will give some consideration to that matter. 18 Under the amendments introduced by the Property (Relationships) Legislation Amendment Act 1999 which took effect on 28 June 1999 there was an extension of the Act which applied to proceedings which commenced after that date. The amended Family Provision Act incorporates the definition of a Domestic Relationship in the Property (Relationships) Act 1984. 19 That Act applies to domestic relationships which are defined in s 5 as follows: "Domestic Relationships.