Paul Sikorski v Richard John Michalowski and Anor [2007] NSWSC 666

New South Wales Supreme Court

CITATION : Paul Sikorski v Richard John Michalowski and Anor [2007] NSWSC 666

HEARING DATE(S) : 19 and 20 February 2007

JUDGMENT DATE : 27 June 2007

JUDGMENT OF : Associate Justice McLaughlin

CATCHWORDS : Succession. Family Provision. Estate entirely distributed before commencement of proceedings. Claim by adult son. Financial and material circumstances of Plaintiff. Whether there has been conduct disentitling. Plaintiff is the only eligble person. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claim of First Defendant, who is sole object of testamentary beneficence of the Deceased. Proceedings out of time. Notional estate

LEGISLATION CITED : Family Provision Act 1982

Easterbrook v Young (1977) 136 CLR 308 Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Vigolo v Bostin (2005) 221 CLR 191 Cetojevic v Cetojevic [2006] NSWSC 431 Spencer v Blyth [2006] NSWCA 181

Paul Sikorski (Plaintiff) PARTIES : Richard John Michalowski (First Defendant) Maria Delores Michalowski (Second Defendant)

FILE NUMBER(S) : SC 2382 of 2005

COUNSEL : Mr P. O'Loughlin (Plaintiff) Mr F. Donohoe (Defendants)

SOLICITORS : Hancock Alldis & Roskov (Plaintiff) Atkins Jones (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 27 June 2007

2382 of 2005 PAUL SIKORSKI v RICHARD JOHN MICHALOWSKI and ANOR JUDGMENT 1 HIS HONOUR: These are proceedings under the Family Provision Act 1982. 2 By summons filed on 13 April 2005 Paul Sikorski claims substantively an order for provision for his maintenance and advancement in life out of the estate of his late father, Joseph Sikorski (to whom I shall refer as "the Deceased"). 3 The Deceased died on 3 March 2003. He left a will dated 10 October 1996, probate whereof was on 8 May 2003 granted to Richard John Michalowski and Maria Delores Michalowski, the executors named in such will (who are the Defendants to the present proceedings). I would here observe that the given name of the Deceased is shown in the probate as "Jozef"; however, in the summons in the instant proceedings it is shown as "Joseph". 4 By that will the Deceased gave the entirety of his estate to Richard John Michalowski, the First Defendant. 5 The inventory of property discloses that the only asset in the estate of the Deceased was a house property situate at and known as 28 Storey Street Fairy Meadow, to which an estimated value of $330,000 was attributed. That house property was, however, sold in May 2003 for $348,500, the net proceeds of sale whereof, being in an amount of $332,569, were received by the First Defendant in late June 2005. 6 In calculating the value of an estate available for distribution, the costs of the respective parties are normally taken into account, since the costs of an applicant, if successful, will usually be payable out of the estate, whilst the costs of an executor, irrespective of the outcome of the proceedings, will also be payable out of the estate. The situation in the instant case is, however, somewhat different. Since the estate of the Deceased has been fully distributed, any order for provision which may ultimately be made in favour of the Plaintiff, must be paid (if it is to be paid at all) out of notional estate of the Deceased. It is estimated on behalf of the Plaintiff that his costs of the proceedings will total about $29,000 (inclusive of GST) whilst it is estimated on behalf of the Defendants that their costs will total about $36,000 (inclusive of GST). 7 The Plaintiff was born on 10 July 1958 and is presently aged 48. He was the only child of his parents. (The fact that he had been adopted by them as an infant does not affect his status as their child.) The Plaintiff lived at home with his parents at Fairy Meadow until 1976. On 9 October of that year he married his present wife, Susan Jennifer (née Glover). Of that marriage were born two children, Daniel Jason Josef (who was born on 1 April 1977, and is presently aged 30), and Keggan Travell Honan (who was born on 28 May 1992, and is presently aged 15). 8 The Plaintiff's mother, Mrs Janina Sikorski, died in August 1977. After the Plaintiff left home and married he visited his parents (and, after his mother's death, the Deceased) regularly, at least three times a week, until 1988, when he, his wife and their child moved to Queensland. According to the Plaintiff, he had a very good relationship with each of his parents, and his father also developed a close relationship with the Plaintiff's elder son Daniel. 9 It was the evidence of the Plaintiff that after his removal to Queensland he had less contact with the Deceased, but telephoned him once a week. He also travelled from Queensland to visit the Deceased at Fairy Meadow about once a year. 10 In 1992 the Plaintiff was informed that his father had shortly before been bashed and stabbed, and had been admitted to the Wollongong Hospital. The Plaintiff, his wife and their children immediately travelled from Queensland to Fairy Meadow, where, for the next nine months, after the Deceased's discharge from hospital, they resided with him in the Storey Street residence. 11 According to the Plaintiff, the Deceased for many years, and certainly by 1992, had been an alcoholic. The First Defendant did not admit that fact, but I am satisfied from the evidence (especially that of the Deceased's next door neighbour, Barry Armstrong) that the Deceased was, in fact, an alcoholic. That condition of the Deceased placed a strain on his relationship with the Plaintiff and the Plaintiff's family whilst they were residing with the Deceased. Indeed, the Plaintiff's wife found it necessary to receive instructions from Alcoholics Anonymous, in order to learn how to cope with living with an alcoholic. By mid-1993 the Plaintiff, on account of the drinking habits of the Deceased, left the Storey Street property with his wife and children, and returned to Queensland. They there resided in rented accommodation until about September 2001, when they purchased a house property at 52 Leray Road, Elimbah, in which they have resided since that time. 12 In about 1993 (I gather, after the departure of the Plaintiff and his family) the Deceased, who had been a linesman by occupation, retired from employment. From that time the Deceased's consumption of alcohol increased. 13 It was the evidence of the Plaintiff that for the first six months after his return to Queensland in 1993 he telephoned the Deceased regularly, at least once a week. However, on each of those occasions the Deceased, as soon as he became aware of the identity of his caller, terminated the telephone call. The Plaintiff continued to send Christmas cards and letters (including photographs of his two children) to the Deceased until about 2000. However, he received no response from the Deceased, and he ultimately ceased sending letters or making telephone calls to his father. 14 As I have already recorded, the Deceased died on 3 March 2003. However, the Plaintiff was unaware of that fact at the time and for two years thereafter. As a result of a telephone call which he made to his father's residence in mid-March 2005 the Plaintiff then called the Deceased's next door neighbour, Barry Armstrong, by whom he was informed that the Deceased had died two years previously. 15 The Plaintiff then sought legal advice, and ultimately became aware of the testamentary dispositions of the Deceased. 16 At the end of June 2005 the Plaintiff was retrenched from his employment as a commercial fisherman. He has not been in employment since that time. The Plaintiff said that he presently receives a parenting allowance from Centrelink, which averages about $138 a week. The Plaintiff's wife, who receives a disability pension of about $200 a week is in casual employment as a cleaner, receiving net weekly earnings in an average amount of about $248. In addition, his wife receives about $90 a week by way of a parenting allowance. According to the Plaintiff, the combined income of the Plaintiff and his wife is about $676 a week. However, the statement from Centrelink which is annexure A to the Plaintiff's affidavit of 24 December 2006 reveals the Plaintiff's parenting allowance to be about $90 a week, identical to that of his wife. If that be so, then the combined income of the Plaintiff and his wife would be only about $628 a week, that being less than the combined total of about $676 a week referred to in paragraph 4 of the Plaintiff's foregoing affidavit. The Plaintiff's elder son is no longer dependent upon the Plaintiff. However, his younger son lives at home and is totally dependent upon him. 17 The Plaintiff and his wife pay fortnightly mortgage instalments of $510 in respect to their residence (upon which an amount of about $140,000 is presently outstanding). The Plaintiff and his wife have no savings and no superannuation entitlements. Amongst their liabilities is a Mastercard indebtedness in an amount of about $11,600, which they repay at the rate of $50 a week. It was the evidence of the Plaintiff that the total income of himself and his wife was just sufficient to cover the mortgage payments, household expenses and other outgoings. 18 The Plaintiff suffers from various health problems, including sleep apnoea and chronic insomnia. It was the Plaintiff's evidence that as a result of these conditions he suffers from fatigue, which affects his ability to work, and that that was one of the reasons why he was retrenched. The Plaintiff also said that he will in the future require surgery upon his eyes, the condition of which has deteriorated in consequence of diabetes. 19 The Plaintiff asserted various needs, including the acquisition of a new motor vehicle and various household appliances, as well as improvements to and refurbishment work upon his residence. He estimated those items of expenditure, together with the outstanding amount of the mortgage loan on his residence ($140,000), to total $253,500. 20 It will be appreciated that the claim of the Plaintiff must be approached in the light of the competing claim of the First Defendant who is the chosen object of the testamentary beneficence of the Deceased. 21 The First Defendant was born on 14 April 1960, and is presently aged 47. His father died in 1976, and his mother, Adela Michalowski had known the Deceased for many years. The First Defendant met the Deceased when he was eighteen years of age. At that time the Deceased was living alone, his wife having died a couple of years earlier. The Deceased regularly visited the residence of the First Defendant and his mother, staying overnight every weekend. It was the evidence of the First Defendant that he had a very good relationship with the Deceased, who he said fulfilled the role of father figure to him. They indulged in social occasions and recreations together. 22 The First Defendant married Maria Delores Michalowski, the Second Defendant, on 6 March 1987. They have three sons (Matthew, aged 19, and twins Joshua and Nathan, aged 17). It was the evidence of the First Defendant that his three sons got on very well with the Deceased. 23 According to the First Defendant he had met the Plaintiff on only one occasion (that being at a Christmas dinner at the residence of the Deceased) before the Plaintiff and his family came down to Fairy Meadow at the time of the assault upon the Deceased in 1992. He said that the Deceased was in the Wollongong Hospital for ten days, having been admitted on the Friday night and that the Plaintiff arrived at the hospital, two days later, on the Sunday. 24 It was the evidence of the First Defendant that throughout the period whilst the Plaintiff and his family were residing with the Deceased (a period which the First Defendant ultimately agreed was about nine months), the Deceased continued making weekend visits to the First Defendant's mother and that during those visits the Deceased was critical of the presence of the Plaintiff and his family in the Fairy Meadow residence. The First Defendant did not visit the Deceased at his residence throughout that period. According to the First Defendant, the Deceased, after the departure of the Plaintiff and his family, said that he, the Deceased, had requested the Plaintiff to leave. 25 The First Defendant said that in about 1993 the Deceased retired from work, and that having always been a regular drinker, his consumption of alcohol increased after retirement. 26 The First Defendant's mother died in 1996. The First Defendant said that the Deceased's health deteriorated at that time, and that the First Defendant was in the practice of regularly visiting the Deceased, looking after him, preparing his meals, attending to his shopping and washing his clothes. He said that he visited the Deceased after work two or three times a week, and that occasionally on weekends he would take his children to visit the Deceased. 27 After the death of the Deceased, the First Defendant gave to the police (who were attempting to locate the Deceased's next of kin) the Plaintiff's last contact telephone number, which the First Defendant believed to be a Queensland telephone number. He informed the police that as far as he knew the Plaintiff was dead. The First Defendant himself made no attempt to ascertain whether or not the Plaintiff was alive and made no inquiries as to the Plaintiff's whereabouts. The information which the First Defendant gave to the police, that the Plaintiff was dead, was based on what the First Defendant said had been told to him by the Deceased. It was the First Defendant's evidence that the Deceased had at some stage, after the return of the Plaintiff and his family to Queensland, told the First Defendant that the Plaintiff had committed suicide. The First Defendant made no attempt to satisfy himself of the accuracy of that statement, or to elicit from the Deceased any details or amplification concerning the alleged demise of the Plaintiff. 28 The First Defendant said in his primary affidavit that if he had known that the Plaintiff was alive he would have tried to contact him, and would have made to him some allowance from the estate before distribution. 29 The First Defendant in that primary affidavit set forth his assets and liabilities, as follows: Assets House property at 1 Malcolm Avenue, Cringila $160,000 Toyota Sportivo 2003 motor vehicle $49,000 Mitsubishi utility dual-cab 1998 $8,000 Toyota Camry sedan 1993 $3,000