Quijarro v Robson [2008] NSWSC 818

New South Wales Supreme Court

CITATION : Quijarro v Robson [2008] NSWSC 818

HEARING DATE(S) : 23, 24 25 and 26 June 2008

JUDGMENT DATE : 13 August 2008

JURISDICTION : Equity Division Probate List

JUDGMENT OF : Windeyer J at 1

DECISION : De Facto relationship claim failed – cross claim dismissed. Referral to Registrar to determinate grant to plaintiffs.

CATCHWORDS : WILLS PROBATE AND ADMINISTRATION – Intestacy – Competing claim for administration by children of deceased and claimed de facto partner – whether de facto relationship established. - DE FACTO RELATIONSHIPS – Plaintiff lived in same accommodation as deceased for 8 years - both involved in hotel business - deceased had ongoing relationships with other women - conflicting evidence of relationship - whether claim of de facto relationship made out.

LEGISLATION CITED : Probate and Administration Act 1898 Property (Relationships) Act 1984

CATEGORY : Principal judgment

CASES CITED : Bar-Mordecai v Hillston [2004] NSWCA 65

Leidy Delpilar Quijarro (First Plaintiff) PARTIES : Alexander Quijarro (Second Plaintiff) Merryl Kay Robson (Defendant)

FILE NUMBER(S) : SC 115681 of 2007

COUNSEL : M Lawson (Plaintiffs) J Stephenson (Defendant)

SOLICITORS : Bill Morland Solicitors (Plaintiffs) Cropper Parkhill (Defendant)

- 15 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST

WINDEYER J

WEDNESDAY 13 AUGUST 2008.

115681/07 LEIDY DELPILAR QUIJARRO & ANOR V MERRYL KAY ROBSON JUDGMENT Introduction 1 Luis Quijarro died on 9 October 2006 intestate, aged 55. The plaintiffs are the two adopted children of the deceased. The defendant/cross-claimant claims to be the de facto wife of the deceased. 2 The plaintiffs seek a grant of letters of administration of the estate as does the defendant by cross-claim. If the defendant were the de facto spouse of the deceased at his death then she would be entitled to a grant as the person having the greatest interest in the estate. If she were not the de facto spouse of the deceased then at his death she has no interest and the plaintiffs are entitled to a grant. This is a probate action in which the only question for decision is entitlement to a grant. Facts 3 The principal asset of the deceased at his death was his interest in the Rose, Shamrock and Thistle Hotel in Oxford Street, Paddington. The title to that property was held as to 18/40ths by the deceased 10/40ths by L W Quijarro Pty Limited and 12/40ths by 3 Weeds Hotel Pty Limited. The hotel business was owned by 3 Weeds Hotel Pty Limited (3 Weeds), the deceased was the licensee of the hotel at his death. The shares in 3 Weeds were held shortly prior to his death as to 17.5% by the deceased, 12.5% by the defendant and 70% by L W Quijarro Pty Limited. Shortly before he died the defendant signed a transfer of her shares to the deceased for consideration of $400,000. That transfer was advised to the Australian Securities and Investment Commission after the date of death. The records of the company have been noted accordingly. The consideration of $400,000 remains unpaid. The evidence at least suggests that there was to be additional consideration for the transfer, through the deceased transferring to the defendant his 7/12ths share in a property at Redfern in which the defendant held the other 5/12ths interest, but subject to the defendant taking over the whole of the liability under the mortgage to the bank over that property. There is, however, no written document evidencing any such arrangement. 4 Limited letters of administration pendente lite were granted to the defendant on two occasions, one of which grants was for the purpose of enabling a contract for the sale of the hotel property, entered into by the defendant on behalf of the estate without any authority, to be concluded. The net proceeds of sale with interest now amount to about $1,053,500 which in a schedule of present assets annexed to an affidavit of the defendant, sworn on 24 June 2008 is all said to be an asset in the estate, which could not be correct. It might amount to much the same, if the assets of 3 Weeds and the Quijarro Company were all in the hands of the deceased as the only shareholder, but that is not yet established. In the same way the schedule of liabilities lumps estate and company debts together. No doubt this will be sorted out in due course. For present purposes it is sufficient that there is proved to be property in New South Wales. The evidence is not sufficient to enable a grant of letters of administration in this action at the present time, as there is insufficient compliance with the rules. That is not of significance because once it is decided whether or not the defendant is entitled to share in the estate, procedural matters for the grant can be taken care of by the registrar. 5 The deceased was born in Ecuador. According to the death certificate he was married twice, but no details are given of the first marriage. The second marriage was to Rita Quijarro (Rita) on 2 November 1980 and ended in divorce on 7 July 2006. The plaintiffs are adopted children of the deceased and his second wife. They may have been adopted first in Ecuador but were adopted by order of this Court in New South Wales in 1992. By that time it seems that the adopting parents were probably separated or in the process of separating. 6 The deceased was something of a philanderer. He had relationships with quite a number of women both before and after separation from Rita, including the period during which the defendant claims to have been in a de facto relationship with him. 7 The defendant married in 1965 but separated in 1993. She remains married. There are four children of that marriage. In 1993 and up to 2004 the defendant was a tutor in genetics at the University of Sydney and then managing director of the Fruit Fly Research Centre at the University. She and the deceased met in 1993. They immediately formed a relationship including a sexual relationship. The defendant was living in Camperdown and the deceased was living in Surry Hills. They did not live together in the same house but they did spend nights in each other's houses. The deceased changed houses, first to Camperdown and then later to Paddington and he and the defendant did live together in the Paddington house for six months in 1998. During this time I accept the evidence that they ate together, slept together and it seems lived as a couple would. It is accepted by the plaintiffs that the deceased and the defendant were in a de facto relationship at some stage and it seems that they were then. 8 In 1996 or 1997 the deceased and the defendant bought, together with a Mr and Mrs Berger, a property in Redfern. A mortgage loan was arranged through the Commonwealth Bank of Australia for this and that bank still has a mortgage over the property. The evidence does not establish the original shares in which the title was held, but in 1997 Mr and Mrs Berger were paid out after which the property was held as to 5/12ths by the defendant and 7/12ths by the deceased as tenants in common. The title as so registered remains in that position. 9 The hotel was purchased in 1998. According to the defendant it was purchased by the deceased with two business partners, whose shares were subsequently bought out, but there is no evidence as to how this was achieved. The defendant says that she "contributed $25,000 to assist Luis in buying his partner, Leon Berger's share of the hotel". The defendant moved into the hotel in September 1998 and the deceased moved there in 1999 after selling his Paddington property. The hotel has a basement, bars on the ground floor, licensee's accommodation on the first floor, hotel guest accommodation on the second floor and a third floor with a bedroom and at least a laundry giving access to a roof area. 10 There are two bedrooms on the first floor. The defendant said that she and the deceased initially slept in the main bedroom but that she had problems sleeping due to compressor noise and the deceased complaining about her snoring so that after a short time she usually slept in the small bedroom on the first floor, although regular sexual relations continued. Later she moved to the bedroom on the third floor, saying that the sexual relations continued and that she continued to use the bathroom on the first floor and that she kept her belongings there. While I consider it is more likely than not that she did use the bathroom there, I do not accept that she kept all her belongings in the second bedroom there. 11 In April 2004 the deceased and the defendant moved to live in a flat at Zetland. The defendant said they did this to be able to be together and away from others. The deceased told friends it was to enable alterations to the hotel, that he did not want the defendant there, but she insisted on going with him. There were two bedrooms at Zetland and one bathroom. The defendant said the same sleeping pattern continued. 12 As often happens in these cases a great deal of evidence and almost interminable cross-examination was directed to the sleeping routine, who used what bathroom, and where the particular clothes were kept for the period from 1998 to 2006. 13 It is necessary to explain one matter with the affidavit evidence as otherwise there would be some confusion. The defendant originally swore an affidavit on 27 August 2007 which had some procedural problems. A new affidavit in the same terms was sworn on 24 June 2008 and read in the proceedings, but it has to be treated as the defendant's affidavit really made in August 2007 relevant to the de facto issue. In that affidavit the defendant painted a somewhat different picture from the picture which finally emerged. She gave evidence about having regular meals with the deceased, cooking for him and his children, when they were staying at the hotel, and doing all the household work and laundry. From some of this evidence she subsequently stepped back somewhat. In that affidavit she said that the deceased died on 9 October 2006 "during a trip to visit friends somewhere at Tweed Heads", which on any basis was misleading and she gave little information as to relationships the deceased had with other women, in respect of some of which she was at least aware. She said for instance that although she was aware the deceased was not always faithful to her, she remembered only one time when he did not come home while they were in Zetland. I do not accept that as true. 14 It is necessary to deal with the evidence of witnesses as to the relationship. Prior to the defendant meeting the deceased and while he was still living with Rita he had a relationship with a lady named Florence. While he was living at the hotel and probably before that he had a relationship with another woman called Deborah. Rita said that she used to visit the deceased in the hotel once or twice a year until December 2003 or early 2004; that when she did so she never saw Ms Robson; that she slept with the deceased in his bedroom and had sexual intercourse with him there. She said she saw no women's clothes in the bedroom. She was living at that time and still lives on the Gold Coast in Queensland. She said that the deceased visited her every four or five months from 2001 to 2006 and that they had sexual relationships when he visited. The deceased spoke of the defendant to her, and of his sexual relations with the defendant as he had done about his sexual relations with other women and she said that the deceased told her that the defendant was only a business partner. She knew of the relationship of the deceased with a Marilyn Burton and a Mrs O'Brien to which I will come. It was she who introduced the deceased to Marilyn Burton. She and the deceased were divorced on 7 July 2006, but they had been discussing this in early 2006 and before the deceased met Mrs Burton. She said that as she was retiring from work she wanted to have her financial situation in order, which had not been necessary before. I accept all this evidence. Although it could be said that Rita would wish to assist her children, I found her to be a convincing witness. She also gave evidence which I accept that the defendant's room at Zetland was tidy and well kept when she visited after Mr Quijarro died but that the bedroom he occupied was in a messy and disordered state. I accept that as well. It is not contested. 15 The plaintiff, Alexander Quijarro, gave evidence on affidavit of meeting the defendant in 2000 at an Olympic event and of meeting Deborah with his father at another Olympic event. Around the time of the Olympics and in late 2000 he said that he often saw his father with Deborah touching and holding hands. He said that he never saw his father display affection towards the defendant. He lived at the hotel for three months in 2001 and worked there and saw his father and the defendant working there. He said that they never kissed, hugged, held hands or touched in an intimate way. I accept that evidence but against that the defendant said that she thought it inappropriate to display affection while working, except on special occasions such as Christmas parties. I do not think this evidence is of much significance. He also said that while he was staying at the hotel he had only one or perhaps two meals with his father and the defendant and that he had about 60% of his meals alone and about 40% with his father. Alexander went to the Zetland apartment about two weeks after his father died. He gave, what I will call, the expected evidence about bedrooms. By that I mean that he did not see items of women's clothing in the bedroom where the deceased slept. He said that the defendant said, talking about Zetland, that some percentage was hers and some the deceased, but I am satisfied that if something like that was said it was about the hotel, not Zetland. He said that on inspection of the deceased's bedroom the defendant had said, "This is Luis' bedroom. I haven't touched anything because I wanted you to see how he left it". He said there were no articles of women's clothing in the room and no photographs of the defendant and his father. Again I accept his evidence in general. He did admit to having seen women's boots there, which belonged to the defendant. 16 The plaintiff, Leidy Quijarro was born in 1984. Her evidence of the relationships her father had with women was similar to that of her brother. She lived in the hotel for six months in 2001. She gave the expected evidence about belongings and clothing in the deceased's room and in the defendant's room. At this time the defendant was sleeping on the third floor. Leidy Quijarro said that there was a separate bathroom there which the defendant denied and after considering this carefully I do not accept that there was a bathroom available on the top floor. Apart from that I accept the evidence of this plaintiff in general. After 2001 she said that she only saw her father about once every six months and never with any woman. She said that at the visit to Zetland after her father died the defendant said, "Luis and I were not a couple. We were only business partners." But in cross-examination she agreed that the defendant said as well "This was Luis' and my home. No one else was allowed in. This was our private sanctuary away from the hotel." She gave the expected type of evidence about the bedrooms at Zetland. At least here there was only one bathroom so that it was not suggested it was not used by both the deceased and the defendant. 17 I should say now that I do not think the question of whether or not there is a de facto relationship can often be determined by the position of clothing or use of bathrooms. There are hundreds of married couples who keep clothing in different rooms; there are no doubt married couples who sleep in separate rooms, but have a committed relationship. There are many married couples who use different bathrooms and no doubt many more who wish that they could. 18 Mrs Winifred O'Brien is aged 69. She came to Australia from England in 1988. She met the deceased in 1990 and a relationship was quickly formed, the deceased staying with her at her home in March or April 1990 when a sexual relationship commenced. After that they went out regularly in public and according to this witness "kissed each other in public, hugged and otherwise behaved as a married couple". She said she visited the deceased in his homes before he moved into the hotel and often stayed the night with him. She only visited the hotel on a couple of occasions, as she did not like hotels. She said that the deceased visited her at her home once or twice a week and often stayed overnight. On occasions he would stay for two or three days. She cooked for him and gave him meals to take home. Every week from 1996 to 2006 she washed his clothes and ironed them. She said that there was a regular sexual relationship until she had an operation in 2002 when this ceased for a while, but after further operation in 2003, the sexual relationship resumed at least once a week. This continued until about ten weeks before he died but it ended because Mrs O'Brien noticed that the deceased was getting short of breath and grabbing his neck during intercourse. She helped him when his mother died in October 2006 as she had visited the deceased's family in Ecuador in 1996. She received many cards of endearment which are in evidence, going up to November 2005. She met the defendant only when she called on 10 October to tell her that Mr Quijarro had died, which was the first time she had been told that the deceased was married, although at that stage this was actually not correct. This indicates the defendant had not been told of the divorce. Mrs O'Brien said that on this occasion the defendant said, "I have come to tell you that Luis has died. He is married to Rit. She has two kids and he has a grandchild. He's met this woman and he was going to get married again." She said that the deceased referred to the defendant, Ms Robson, as the manageress. She did not know where the deceased was living after he left the hotel but she knew he had left the hotel. I formed the impression that this witness was very fond of the deceased. She said she loved him. I accept that. Although it was clear Mrs O'Brien was antagonistic towards the defendant, this may have been because the claim the defendant makes is contrary to what the deceased stated of the relationship. I accept her evidence. The only matters of real contention were the overnight stays. 19 After reading the evidence of Mrs O'Brien about the laundry, the defendant in an affidavit of 1 November 2007 drew back a bit from her evidence saying that she was not good at washing and only washed the light items such as underclothes and the rest was done at the laundry. She said that the deceased often went out on Friday saying he was going to the laundry. I find that the defendant must have known that the deceased was visiting another woman and I do not accept that she could have thought that the laundry was being done by a business, as she must have seen it when it returned. I also accept the evidence of Mrs O'Brien that the deceased stayed with her overnight on many occasions which evidence the defendant denied. The defendant, however, drew back from her unequivocal evidence about overnight absences in the second affidavit. In the same affidavit the defendant said that on 7 October she arrived at the hotel about 5.00 pm, worked there with the deceased until 1.00 am on 8 October when he left telling her to bring home a bottle of champagne. She said she arrived back at Zetland about 4.30 am, that they lit candles and made love. He left for the airport on 8 October at 6.00 am to visit Marilyn Burton. 20 The next witness I will discuss is Marilyn Frances Burton, a single lady who lives at Stokers' Siding near Byron Bay and who seems be known to many people as "Buda". She did not complete the draft affidavit prepared for her but she swore to its contents in the witness box and it was admitted as a statement. She said that she met the deceased on 8 February 2006 at Murwillumbah; that it was love at first sight; that the following day she gave the deceased and his wife, Rita, a massage at the bed and breakfast establishment where they were staying; that shortly thereafter the deceased rang to say that he was coming to see her; that she picked him up at Coolangatta airport on 26 February and took him to her home where he gave her a stone necklace and said, "We are now spiritually married"; that he stayed until 1 March and a sexual relationship developed which continued until the day he died. After that she said that they were in constant contact and spoke to each other every day. The deceased told her of the defendant saying: I am sharing a flat with a woman, Merryl, with whom I previously had a relationship with, but we are not involved any more. Merryl is a miserable woman. She won't pay rent to live on her own. She wants to live with me so that she doesn't have to pay rent on her own. I don't want her around but she won't go.