Morwood v Dalgleish & Anor [2007] NSWSC 32

New South Wales Supreme Court

CITATION : Morwood v Dalgleish & Anor [2007] NSWSC 32

HEARING DATE(S) : 29, 30, 31 January 2007

JUDGMENT DATE : 16 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Associate Justice Macready at 1

DECISION : Paragraph 90

CATCHWORDS : Family Provision. Application under the Family Provision Act for provision by de facto partner of deceased. Order made. No matter of principle.

PARTIES : Ian David Morwood v Susan Margaret Dalgleish & Anor

FILE NUMBER(S) : SC 2804 of 2006

COUNSEL : Mr P O'Loughlin for plaintiff Mr B Skinner for defendants

SOLICITORS : Hancock Alldis & Roskov for plaintiff Djekovic Hearne & Walker for defendants

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

Associate Justice Macready

Friday 16 February 2007

2804 of 2006 Ian David Morwood v Susan Margaret Dalgleish and Christopher David Gingell JUDGMENT 1 His Honour: This is an application under the Family Provision Act 1982 in respect of the estate of the late Timothy Maxwell Gingell who died on 20 February 2006 aged 55 years. His brothers and sister, two of whom are the defendants in the action, survived the deceased. The plaintiff claims to have been living in a de facto relationship with the deceased at the date of death. The last will of he deceased 2 Under the deceased's will made on 28 October 1994, before the plaintiff and the deceased met, the defendants were appointed executors. Under his will the deceased left a legacy of $50,000 to a Mr Peter Tonkin who was a former partner of the deceased. The residue of the estate was left to the deceased's sister and two brothers in equal shares. Estate of the deceased 3 The deceased owned a house and a vacant block of land at Blueys Beach the total value of which is $1,900,000. He had shares worth $5,500, cash of about $280,000 a superannuation policy of $700,000, motor vehicles and personal effects. The deceased also had an interest in the estate of his father which was worth approximately $250,000. That interest has passed to the deceased's brothers and sister and has been distributed. The defendants costs are estimated at $60,000 and those of the plaintiff at $67,000. Family History 4 The plaintiff was born on the 23 of February 1937 and is thus 69 years of age. The deceased was born on 3 November 1951. The plaintiff married his wife Tove Morwood in 1963 and they had two daughters. 5 The plaintiff and his wife had separate occupations but they both became bankrupt in September 1986. Their bankruptcies were discharged by operation of law in September 1989. The unfortunate events which led to their bankruptcies also led to the breakdown in their relationship and the plaintiff and his wife were divorced in February 1992. Thereafter the plaintiff became involved as a litigant in person in some litigation in the Federal Court in which he was unsuccessful. That concluded when the High Court refused special leave to appeal in September 1999. 6 The plaintiff and deceased first met in November 2002. At that stage the plaintiff was living in a tent in a caravan park in the National Park near Blueys Beach. The defendant who had previously had heterosexual and homosexual relationships had moved to Blueys Beach in November 1997. 7 According to the plaintiff in January 2003 at the invitation of the deceased the plaintiff began to live with the deceased at his home at Blueys Beach. The plaintiff introduced the deceased to his passion of bicycle riding and this was a common interest for them. The deceased's mother died in March 2003 leaving her husband and children to survive her. 8 In his early years the plaintiff lived in institutions run by the Roman Catholic Church and in October 2003 he received compensation of $28,000 in respect of some of the unfortunate incidents which occurred in his early life. According to the plaintiff the deceased helped the plaintiff to come to terms with these problems and to resolve them. 9 In October 2004 the plaintiff contracted viral encephalitis and was looked after by the deceased during that illness. In the middle of 2005 the deceased fell from his bicycle and broke his collarbone. This required extensive nursing care which was provided by the plaintiff who also took the deceased to his medical and associated appointments. At this time there was also discussion between the deceased and the plaintiff when the deceased said, according to the plaintiff, that he wished the plaintiff to have the use of his estate until he, the plaintiff, died. 10 Apart from the house at Blueys Beach the deceased also owned a block of land opposite and in the latter part of 2005 there were discussions between the deceased and the plaintiff about building a new house on the vacant block of land and this continued to the planning stage. 11 In early February 2003 the plaintiff and the deceased made arrangements for a camping holiday together and the plaintiff left to take part in some cycling events. Towards the end of February the plaintiff received a call from the Forster police informing him of the death of the deceased who had died about the 20 February 2006. 12 Thereafter the plaintiff was excluded from the Blueys Beach property and he returned to live in the tent in the caravan park. Probate was granted to the defendants on 8 April 2006 and these proceedings were commenced within time. Eligibility