Cooke v Bartrop [2007] NSWSC 241

New South Wales Supreme Court

CITATION : Cooke v Bartrop [2007] NSWSC 241

HEARING DATE(S) : 12, 13, 14 and 15 March 2007

JUDGMENT DATE : 22 March 2007

JUDGMENT OF : Hammerschlag J

DECISION : Claim dismissed

CATCHWORDS : SUCCESSION – Intestate estate – Claim by alleged de facto wife – Whether plaintiff a de facto wife under s 32G of the Wills, Probate and Administration Act 1898 and s 4 of the Property (Relationships) Act 1984 – Question of fact – Evaluation of degree of mutual commitment to a shared life – De facto relationship not established

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

PARTIES : Marion Cooke Graham Leslie Bartrop as Administrator of the Estate of the Late Gary Mark Bartrop

FILE NUMBER(S) : SC 01368/2005

COUNSEL : L S Ellison SC (Plaintiff) E Cohen (Defendant)

SOLICITORS : Marsdens Law Group (Plaintiff) Kerrisons The Law Firm (Defendant)

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

HAMMERSCHLAG J

22 MARCH 2007

01368/2005 MARION COOKE v GRAHAM LESLIE BARTROP AS ADMINISTRATOR OF THE ESTATE OF THE LATE GARY MARK BARTROP

JUDGMENT

The issue 1 Was the plaintiff Marion Cooke the de facto spouse of Gary Mark Bartrop when he died? That is the sole issue in this case. 2 If she was, his estate shall be held on trust for her absolutely by operation of s 61B(2) of the Wills, Probate and Administration Act 1898 (NSW) read with s 32G of that Act and s 4 of the Property (Relationships) Act 1984 (NSW). 3 I shall refer to the deceased as "Gary", with no disrespect intended. Gary died, aged 42, at about 7.00am on 28 January 2004 in his Toyota van in a head-on collision with a garbage truck on The Northern Road, Bringelly. A brief history of the plaintiff and Gary and their relationship 4 Gary was born in England on 29 May 1961. He migrated to Australia in 1980 at the age of 19. He was preceded by his older brother Graham Leslie Bartrop (the defendant) who came in 1977. Gary was followed by his parents and his two younger brothers, Grant and Glenn, in 1981. 5 Gary lived in a house which he owned at 233 Cobbitty Road, Cobbitty ("Cobbitty Road"). Cobbitty is in the Camden - Campbelltown area of New South Wales. When he died there was mortgage finance on it of about $60,000 owed under two loans from the Commonwealth Bank. 6 Gary had a passion for antiques and oddities including unusual motor vehicles. He owned a Triumph Herald motor vehicle which he named "Eric the Erald". He sold antiques and bric-a-brac, at one time under the name "The Squirrel's Loft". He also did handyman work.