Supreme Court New South Wales Medium Neutral Citation: Enzo Jair Ploder v Vittoria Angelina Garcea (as executrix of the estate of the late Fiona Rita Garcea) [2013] NSWSC 1360 Hearing dates: 20 August 2013 and further written submissions on 11 September 2013 Decision date: 19 September 2013 Jurisdiction: Equity Division Before: Sackar J Decision: See paragraph [113] Catchwords: COSTS - dismissal of plaintiff's proceedings following settlement - whether the court should exercise its discretion to make an order for costs other than the usual order under r 42.20(1) - whether the defendant should pay the plaintiff's costs - whether the executrix defendant should be entitled to seek her costs out of the estate Legislation Cited: Civil Procedure Act 2005 Evidence Act 1995 Interpretation Act 1987 Property (Relationships) Act 1984 Succession Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656 Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32 Drummond v Drummond [1999] NSWSC 923 Enzo Jair Ploder v Vittoria Angelina Garcea (as executor of the estate of the late Fiona Rita Garcea) [2013] NSWSC 201 Fordyce v Fordham (2006) 67 NSWLR 497 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Franks v Franks [2013] NSWCA 60 Hamilton v Moir [2013] NSWSC 1200 McNamara v Bao San [2010] NSWSC 809 Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd [2010] NSWSC 1195 Miller v Cameron (1936) 54 CLR 572 Nowell v Palmer (1993) 32 NSWLR 574 Re Jones; Christmas v Jones [1897] 2 Ch 190 Re The Minster for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 Re Weall; Andrews v Weall (1889) 42 Ch D 674 Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268 Singer v Berghouse (1993) 114 ALR 521 Skrimshire v Melbourne Benevolent Asylum (1894) 20 VLR 13 Category: Costs Parties: Enzo Jair Ploder (Plaintiff) Vittoria Angelina Garcea (as executrix of the estate of the late Fiona Rita Garcea) (Defendant) Representation: Counsel: T Hall, solicitor (Plaintiff) J Armfield (Defendant) Solicitors: Hall Partners (Plaintiff) Mills Oakley Lawyers (Defendant) File Number(s): 2011/275072 Judgment Proceedings 1By a summons filed on 25 August 2011 (dated 29 June 2011), the plaintiff, Enzo Jair Ploder (the plaintiff or Mr Ploder), sought provision pursuant to s 59 of the Succession Act 2006 out of the estate of the late Fiona Rita Garcea (the deceased or Fiona). 2The Succession Act 2006 expressly provides that an "eligible [person] who may apply to the Court for a family provision order in respect of the estate of a deceased person" includes "a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death" (s 57(1)(b)), and "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" (s 57(1)(f)). For the purpose of determining both whether the person seeking family provision is an eligible person, and the nature of any family provision order to be made, the court may have regard to, among other things, the "the nature and duration of the relationship" (s 60(2)(a)) between the deceased and the plaintiff. It is apparent that the probability and degree of success of the plaintiff's claim will be affected by the intimacy of his relationship with the deceased. This material fact is contested between the parties. 3During the course of the hearing, the contested issues of critical relevance to whether the plaintiff should obtain relief, and the appropriate extent of any such relief, were distilled to the following: (1)(nature of the relationship) What was the nature of the relationship between Mr Ploder and Fiona? Sub-questions arising under this issue include whether they were engaged to be married and whether they had been engaging in sexual relations. (2)(duration of the relationship) For how long were Mr Ploder and Fiona living together? (3)(size of the estate) Did the estate of the deceased include a sum of $100,000 advanced as a gift by the defendant to the deceased, or was that sum advanced as a loan and therefore a debt owing by, and to be first deducted from, the estate? 4The plaintiff also filed a statement of claim on 25 November 2011, seeking either, specific performance of an alleged agreement between the plaintiff and the deceased to the effect that the survivor of them would receive the other's interest in a property at 54 Galton Street, Wetherill Park (the Wetherill Park residence), or a declaration that the Wetherill Park residence was held on trust for the plaintiff. 5The defendant, Vittoria Angelina Garcea (the defendant), is the mother, sole beneficiary under the will, and executrix of the estate, of the deceased. The defendant opposed all relief sought by the plaintiff. 6After the entirety of the hearing on the merits was almost completed, the proceedings settled on 28 March 2013 by orders by consent dismissing the plaintiff's statement of claim and providing to the plaintiff a lump sum of $18,478.78 on the undertaking by the plaintiff that if he receives an amount from the deceased's superannuation in excess of that provision, he would consent to the order for provision being vacated and repay to the defendant any provision paid to him. The only aspect of the proceedings which was not the subject of settlement, and which remains to be determined, is the question of costs. Relevant principles 7It is perhaps preferable to first identify the course a court should take when determining the question of costs in a matter which settles only after substantially running to completion. It appears, from the plaintiff's submissions, that the plaintiff considers the conduct of the parties in the litigation to be determinative of the question of costs. Counsel for the defendant submits that the question of costs in these circumstances is determined by applying the usual rule that costs follow the event. 8Clearly, the court always retains a discretion as to costs (Civil Procedure Act 2005, s 98). However, the Uniform Civil Procedure Rules 2005 (UCPR) provide, in particular circumstances, for a number of "usual" orders in relation to costs, unless the court orders otherwise. For example, costs usually follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs (r 42.1). Another example is that costs payable to a person under an order of the court or the UCPR are to be assessed on the ordinary basis unless the court orders otherwise or the rules otherwise provide (r 42.2). Another example is that where the plaintiff files a notice of discontinuance, the plaintiff must pay such of the defendant's costs as, at the date on which the notice of discontinuance was filed, had been incurred by the defendant in relation to each claim in respect of which the proceedings have been discontinued (r 42.19). 9In the present case, there was a dismissal of the plaintiff's statement of claim, and the relevant rule is, in my view, r 42.20(1), which provides: 42.20 Dismissal of proceedings etc (1) If the court makes an order for the dismissal of proceedings, either generally or in relation to a particular cause of action or in relation to the whole or part of any claim, then, unless the court orders otherwise, the plaintiff must pay the defendant's costs of the proceedings to the extent to which they have been dismissed. 10The effect of the main Court of Appeal authorities considering this rule (Fordyce v Fordham (2006) 67 NSWLR 497; Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365; Bitannia Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWCA 32) was helpfully summarised by Hamilton AJ in Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd [2010] NSWSC 1195. The rule applies to dismissals by consent without a hearing on the merits, as well as dismissals after a hearing. Although it does not give rise to a presumption that costs will be ordered against the plaintiff, it does create a starting point that will govern costs unless the outcome is displaced by a discretionary consideration. In order to determine the appropriate costs order, it may be necessary to analyse the whole of the proceedings, including the reasonableness of commencing and defending the proceedings, and whether the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile (Fordyce v Fordham at [66]-[67]). 11Especially in circumstances where effectively the entirety of the written and oral evidence unfolded before me, I consider it necessary to analyse the whole proceeding to determine the appropriate costs order. Although I have canvassed much of the factual background to this matter in a previous judgment (disposing of an interlocutory application made by the plaintiff seeking to discontinue the proceedings on other than the usual cost orders (Enzo Jair Ploder v Vittoria Angelina Garcea (as executor of the estate of the late Fiona Rita Garcea) [2013] NSWSC 201)), I propose to repeat some of that background chronologically for the purpose of this judgment. Some of the evidence does not lend itself to chronological recitation, and I will deal with such evidence separately. 12However, before doing so, I should observe that, as the defendant is formally involved in these proceedings in her capacity as executrix, there is a further legal principle relevant to the question of costs in this case. UCPR, r 42.25 provides: 42.25 Costs of trustee or mortgagee (1) Subject to subrule (2), a person who is or has been a party to any proceedings in the capacity of trustee or mortgagee is entitled to be paid his or her costs in the proceedings, in so far as they are not paid by any other person, out of the fund held by the trustee or out of the mortgaged property, as the case may be. (2) The court may order that the person's costs not be so paid if: (a) the trustee or mortgagee has acted unreasonably, or (b) in the case of a trustee, the trustee has in substance acted for his or her own benefit rather than for the benefit of the fund. 13I note that, consistent with this rule, the Succession Act provides in s 99: 99 Costs (1) The Court may order that the costs of proceedings under this Chapter [being Chapter 3: Family Provision] in relation to the estate ... of a deceased person (including costs in connection with mediation) be paid out of the estate or notional estate, or both, in such manner as the Court thinks fit. 14A number of questions ultimately arise from these provisions. Should the plaintiff should be required, under r 42.20, to pay the defendant's costs, or in the alternative, should the court "order otherwise"? If the court should "order otherwise", what should that order be? Should the defendant, as executrix, be entitled to her costs out of the estate, pursuant to r 42.25? Factual background 15It is common ground that Mr Ploder first made contact with Fiona, through an internet website, around mid-2010, and that they physically met about one month later. Mr Ploder was living at a residence in 54 McLaren Place, Ingleburn (the Ingleburn residence), and Fiona was living with her parents at a residence in 97 Cabarita Road, Concord (the Concord residence). The relationship between Mr Ploder and Fiona developed, and at some point in time, Mr Ploder and Fiona proposed to purchase a property to eventually live together. 16A long-standing business associate of Mr Ploder, Zoran Kasic (Mr Kasic), swore an affidavit (dated 15 November 2011) alleging, among other things, that in about the second week of June 2010, Mr Ploder introduced Fiona to Mr Kasic as his girlfriend. Another friend of Mr Ploder, Caldia Rodriguez (Ms Rodriguez), swore an affidavit (dated 28 October 2011) similarly alleging that in or about June 2010, Mr Ploder introduced Fiona to her as Mr Ploder's "partner". Ms Rodriguez also alleges that on 17 July 2010, at her birthday party at which Mr Ploder and Fiona were present, Fiona said to her that she and Mr Ploder were planning on marrying probably in October of 2011. 17On 20 September 2010, a meeting was arranged where Mr Ploder, Fiona and the defendant met with a financial broker, Guiseppina Mammoliti (Ms Mammoliti), for the purpose of arranging finance for the acquisition by Mr Ploder and Fiona of the Wetherill Park residence. 18In her affidavit (dated 25 November 2011), Ms Mammoliti gave evidence that on about 14 September 2010, when Mr Ploder called Ms Mammoliti to make an appointment to discuss arranging finance for the potential purchase of a property, he said that the proposed acquisition was for "my fiancé and I". Ms Mammoliti also gave evidence that at the meeting of 20 September 2010, Mr Ploder introduced Fiona to Ms Mammoliti, in the presence of the defendant, as his fiancé, and he continued throughout the meeting, to refer to Fiona as his fiancé. Ms Mammoliti also alleges Mr Ploder referred to the defendant as his mother in law. Ms Mammoliti also gave evidence that during the meeting, Fiona said, again in the presence of the defendant, that instead of paying for a wedding, Ms Mammoliti would be providing $100,000 as a gift to be applied towards a deposit on the Wetherill Park residence. Ms Mammoliti also alleges that the defendant herself made comments to the same effect. 19On 27 September 2010, a second meeting was arranged with Ms Mammoliti, which was also attended by Mr Ploder, Fiona and the defendant, to progress the application for finance for the potential purchase of the Wetherill Park residence. Ms Mammoliti gives evidence that, at this second meeting, she explained to the defendant that in order to obtain loan approval for Fiona and Mr Ploder, the sum of $100,000 proposed to be provided by the defendant for the purchase of a home must be a non-refundable gift. Ms Mammoliti says the defendant then made comments to the effect that she understood that the sum needed to be provided as a non-refundable gift, and confirming that Fiona did not want a wedding, and that Fiona instead wished to use the money towards the purchase of a home for Mr Ploder and herself. 20At this second meeting, the defendant signed a statutory declaration, witnessed by Ms Mammoliti, declaring: I am giving my daughter $100,000 as a non-refundable gift because she does not want a wedding celebration but would prefer to purchase a property. 21Ms Mammoliti gave evidence that there was no suggestion in any conversation that the sum of $100,000 was a loan or was to be repaid to the defendant. 22Ms Mammoliti also alleges that, later in October 2010, when the defendant called Ms Mammoliti to advise that the term deposit from which the defendant's gift of $100,000 would be advanced had expired and was therefore ready to be transferred, the defendant mentioned that Fiona was excited that she was buying a home with Mr Ploder and getting married, and that Fiona and Mr Ploder are a "happy couple". 23Mr Ploder alleges that around 17 October 2010, in his presence at the Concord residence, Fiona told the defendant that she would be moving to live with Mr Ploder. According to Mr Ploder, the defendant said she preferred Fiona to do so after marriage, but that she nonetheless agreed to the proposal because their marriage was imminent, and she hoped it would improve her daughter's health. Fiona's father, Vincenzo Garcea (Mr Garcea), allegedly agreed and said it would be easier for Fiona to live with Mr Ploder because she had already been spending more time with Mr Ploder at the Ingleburn residence than at the Concord residence. Mr Ploder alleges that Fiona then moved in with him at the Ingleburn residence on 19 October 2010. 24Mr Kasic also gave affidavit evidence that in late October 2010 he noticed a black Toyota Yaris vehicle parked at the front of Mr Ploder's house, and that when he asked Mr Ploder about the car, he was told it belonged to Fiona as she was living with him at the Ingleburn residence. Mr Kasic alleges that thereafter, whenever he visited Mr Ploder at the Ingleburn residence, he always noticed Fiona's car parked at the front. He also alleges that during his visits to Mr Ploder, he sometimes observed Fiona having breakfast with Mr Ploder, dressed in what appeared to be her pyjamas. He also says he did not see other people living with Mr Ploder and Fiona, or other cars parked at the front of, the Ingleburn residence. 25The then-owner of the Wetherill Park residence, Joe Tolomeo (Mr Tolomeo), swore an affidavit on 28 October 2011, giving evidence consistent with Mr Kasic and Mr Ploder, that when Mr Ploder and Fiona visited the Wetherill Park residence prior to purchasing it, Fiona mentioned that she and Mr Ploder were living together. 26In her affidavit, Ms Rodriguez also gave evidence that when she visited Mr Ploder at the Ingleburn residence in late October 2010, both Mr Ploder and Fiona said to her that they were living together, and that Fiona showed Ms Rodriguez around the house, and that Ms Rodriguez noticed that Fiona's clothes were placed in the same bedroom cupboard as Mr Ploder's clothes, and that other personal items of Fiona were scattered in the bathroom. 27The resident of the property neighbouring Mr Ploder's Ingleburn residence, Paul Chapman (Mr Chapman), swore an affidavit (on 28 May 2012) alleging that "in or about late October or early September 2010 [sic]", until about early February 2011, he often noticed a black Toyota Yaris vehicle parked in the carport of the Ingleburn residence. He gave evidence that, more often than not, he noticed that the vehicle was present at the Ingleburn residence before 7:00am (when he leaves for work in the morning) and after 5:30pm (when he arrives home from work). 28These allegations, that Fiona in effect lived at the Ingleburn residence with Mr Ploder from mid or late October 2010, were disputed by the defendant. In her affidavit (dated 21 October 2011), the defendant accepted that Fiona occasionally spent some nights at the Ingleburn residence with Mr Ploder, but asserted that these occasions were limited to approximately four weekends plus three or four other nights during weekdays, over a period from September 2010 to February 2011. The defendant accepts that Mr Ploder visited the Concord residence about three or four times per week, took Fiona out for coffee or dinner, and on about two occasions between September 2010 and February 2011 he spent the night at the Concord residence (though in a separate bedroom to Fiona). The defendant also alleges that even in late 2010, Fiona referred to Mr Ploder as her "boyfriend", not fiancé, and that the defendant referred to Mr Ploder as Fiona's "fidanzato", which in Italian can mean fiancé but can also refer to a "serious boyfriend/girlfriend relationship". 29In late October 2010, the loan application brokered by Ms Mammoliti was conditionally approved, however Mr Ploder gives evidence that the plan to purchase the Wetherill Park residence was cancelled by Mr Ploder in early November 2010, as a result of Fiona's poor health. Ms Mammoliti gave evidence consistent with this. In her affidavit, she alleges she received a call from Mr Ploder in the first week of November 2010, requesting cancellation of the loan due to Fiona's poor health, and Fiona's improvement of health was his priority. 30In his affidavit dated 10 November 2011, Mr Ploder alleges that in November 2010, Fiona said to Mr Ploder that she wanted to "leave everything" for Mr Ploder in case anything happened to her, including her superannuation, and she then handed to Mr Ploder a piece of paper which she said would give effect to that wish. Mr Ploder alleges he told her to throw the paper away and not to entertain those thoughts. Mr Ploder also alleges, that about two weeks later, he found the same piece of paper in Fiona's jewellery box, and again asked her to throw it away. He says he has not seen the paper since. 31Mr Kasic alleges that in or about early November 2010, at the Ingleburn residence, Mr Ploder said to Mr Kasic that he was engaged to Fiona and that they were looking to purchase a house at Wetherill Park. 32Mr Ploder alleges he formally proposed to Fiona on 30 November 2010, at the home of, and in the presence of, Mr Ploder's parents. However, he alleges that he and Fiona were effectively engaged some months prior to this formality, as they conducted themselves as a couple and were already making plans for marriage in October 2011 (T107-T108). 33On Christmas Day, 25 December 2010, Fiona handwrote the following letter to Mr Ploder (Exhibit P3): To My Gorgeous Man, Merry Christmas. This has been the best year of my life having you in it. I never knew God created a man who could be so compassionate, considerate & loving. When you say you are in love with me, I feel it in my heart & it's because, I feel the same way. I know you are my soulmate. There can never be anyone else, that can make me feel, the way you do. You are the Perfect Man [original formatting]. You are not selfish, you are respectful, funny, loving, tender & understanding. I feel you understand me on every level. I wish every woman could experience a man like you. But unfortunately, it can't be with you because you're mine. I give you my heart, I give you my soul, my fantasies & dreams, & together I know we will be devoted to each other. I pray for 2011 to bring us love, happiness, peace, healing & fulfilment with me. Loving you with all my heart baby, know that I'm always with you & there for you forever. God Bless You! All My Love, XXX Your Fee 34In her affidavit, Ms Rodriguez alleges that on 31 December 2010, at a new year's eve party at which she and Fiona were present, Fiona made comments about the high temperatures in Sydney, and particularly while living in Ingleburn. 35Mr Ploder alleges that during a barbeque at the Concord residence on 9 January 2011, the defendant and Mr Garcea encouraged Mr Ploder and Fiona to reconsider purchasing the Wetherill Park residence, and said they would "give" $100,000 towards the purchase price. Mr Ploder alleges Fiona agreed, and suggested to Mr Ploder in a separate conversation that the house be registered 95% in her name, to isolate the house from Mr Ploder's personal financial exposure from his business, but that in the event that she died, he would receive the house. 36In early January 2011, Mr Ploder alleges he and Fiona contacted Ms Mammoliti to advise her that they were again interested in purchasing the Wetherill Park residence, and received confirmation from Ms Mammoliti that finance approval had not lapsed. Again, this is consistent with Ms Mammoliti's evidence that she received a call from Mr Ploder and Fiona (although she dates the call at 3 January 2011) in which they advised they were again interested in purchasing the Wetherill Park residence. 37Fiona and Mr Ploder purchased the Wetherill Park residence, in shares of 95% and 5% respectively, with an early settlement taking place just before mid-January 2011. The purchase price of the Wetherill Park residence appears to have been financed by the payment of $100,000 from the defendant, the loan brokered through Ms Mammoliti, a payment of about $65,000 from the Fiona's personal savings, and a payment of about $4,500 by Mr Ploder as commission fees for the real estate agent involved in the transaction. Whether the defendant advanced the sum of $100,000 as a loan or as a gift was the subject of controversy before me, and is a question which I will address in some further detail. 38Mr Ploder alleges that prior to their proposed marriage, he and Fiona wanted to lose weight, and both of them therefore decided to undertake an intragastric balloon insertion procedure. Annexed to his affidavit dated 29 June 2011, are forms, from "Sydney Gastric Balloon" at Concord, signed by Fiona and witnessed by Mr Ploder on 11 January 2011, in anticipation of the procedure, which specify the Ingleburn residence as her address. In a further (undated) document entitled "Healthwoods Specialist Centre Pre-Admission Form", Mr Ploder was named as Fiona's next of kin, and his relationship to her was specified as "De Facto". In another related (but undated) document entitled "Sydney Gastric Balloon - Patient Registration Form", Fiona indicated, in response to one of the questions on the form, that she had support from her "Partner". 39Ms Mammoliti alleges she received a call from Mr Ploder on or about 17 January 2011, advising that settlement of the Wetherill Park residence transaction had taken place, and that he and Fiona were going to move in together. 40Mr Kasic alleges that in late January 2011, Mr Ploder mentioned to Mr Kasic that he had bought, and would be moving into, the Wetherill Park residence and that he needed assistance to move Mr Ploder and Fiona's belongings into the Wetherill Park residence. 41In an affidavit (sworn on 28 May 2012), Michael Riley (Mr Riley), who works in the car sales industry, alleges he met Mr Ploder and Fiona on 6 February 2011, when Mr Ploder came to his showroom to trade in his vehicle to buy a new one. Mr Riley said Mr Ploder introduced Fiona to him as his fiancé, and that during the course of conversation, Fiona mentioned that she and Mr Ploder were moving out of Ingleburn and into their new home at Wetherill Park. 42At some point in time, Mr Ploder and Fiona moved into the Wetherill Park residence together. Mr Kasic says that on 11 February 2011, he and others, including Mr Ploder, Fiona, the defendant and Mr Garcea, all assisted with relocating from the Ingleburn residence to the Wetherill Park residence. 43Ms Rodriguez likewise alleges in her affidavit that she and others assisted in relocating the possessions of Mr Ploder and Fiona to the Wetherill Park residence. Ms Rodriguez also alleges that, whilst taking a break with Fiona from the relocation exercise, Fiona expressed gratitude for the gift of $100,000 provided by her parents towards the purchase of the Wetherill Park residence. Ms Rodriguez alleges that once the task of relocation was completed, Fiona took Ms Rodriguez on a tour of the house, together with the defendant. Ms Rodriguez alleges that during the tour, she noticed that a double bed had been moved into the master bedroom. 44The defendant alleges that, during or after the relocation of Mr Ploder and Fiona into the Wetherill Park residence (which is accepted took place on 12 February 2011), Mr Garcea set up Fiona's bedroom at the back of the house, Mr Ploder's bedroom was set up at the front of the house, the defendant had personally unpacked Fiona's clothes into Fiona's room at the back of the house, and Fiona slept in her own bedroom which contained all of her personal items and clothing. The defendant alleges she visited the Wetherill Park residence on 12, 13, 14, 15 and 17 February 2011, performed various domestic duties in the Wetherill Park residence, and observed that Fiona spent most of the day in her own room. 45It appears from the evidence to be common ground that Fiona had been suffering from depression or bodily dimorphic disorder for some time. After returning home from his friend's house at about 1:30am on 19 February 2011, Mr Ploder discovered Fiona's body hanging by a rope supported to the roof of the garage at the Wetherill Park residence. Under Fiona's will, dated 9 October 2008, the defendant was named as the sole beneficiary of Fiona's estate. 46In her affidavit, Ms Rodriguez gives evidence that on 19 February 2011, she visited the Concord residence, where Mr Ploder, the defendant and others were present, and she heard the defendant yelling and wailing, and asking herself why Fiona had taken her life after she had found Mr Ploder and was going to marry him. 47The defendant's first cousin, Anna Alessio (Ms Alessio), prepared an affidavit for the purpose of these proceedings. Ms Alessio lives in Victoria, but travelled to Sydney on 19 February 2011 to support the defendant and Mr Garcea following the death of Fiona. Ms Alessio alleges that after visiting the Concord residence on 19 February 2011, Mr Ploder, who she had just met for the first time that day, drove her to the hotel at which she was staying in Sydney, and that during the drive she had a conversation with Mr Ploder in which he said, in response to a question by Ms Alessio, that he did not have sexual relations with Fiona. Mr Ploder accepts he had a conversation with Ms Alessio when he drove her to a hotel from the Concord residence on 19 February 2011, but denies discussing with Ms Alessio anything in relation to his sexual relationship with Fiona. 48On 23 February 2011, the defendant placed an obituary in The Daily Telegraph newspaper in the following terms (Exhibit P1): GARCEA, Fiona Rita Passed away February 18, 2011. Treasured and beloved daughter of Vittoria and Vincenzo, sister of Ramona, cherished and loved by fiancé Enzo ... Requiem Mass ... will be held ... on Friday, (February 25, 2011) ... For those wishing to pay their last respects a viewing will be held ... Thursday, (February 24, 2011) ... 49On 25 February 2011, at Fiona's funeral, Mr Ploder delivered a eulogy in the following terms: My inspiration, My love, My strength, My advisor, My Happiness, My Best Friend and My Soul mate are but just some of the few words that come to the immediate mind when I think about the time I spent with Fiona. How I so wish that this was a wedding speech and not a farewell Eulogy to a person who I loved more than life and to a family who greeted me with the warmth of their open arms. For she taught me what to be loved realty felt like and that is an experience which I will carry till the end of my days. Unremarkable is exactly what Fiona was for those who knew her, for she was as strong as a lion with a heart which was as soft and tender as a lamb yet as beautiful as an angel, is as I would describe her to those of you who didn't know her. She loved her family and friends with all her heart and there was nothing she would not do for any of them. Yet to the people of this world she was a light, for those who met her never forgot her, for she loved them for who they where and not who they where perceived to be and she would go out of her way for any of them. Unfortunately some of us might say we gather here today to farewell Fiona. Yet I say to you unfortunately we gather here today to farewell a fallen hero. For this girl fought with all her strength to beat this illness, for so many years, which I think most of us would not of lasted as long. And even through the storm with all the burden she carried with her illness she was still able to be such a caring person and push herself to limits which most of us would not even begin to understand and that determination, strength and courage makes her a hero in my eyes. In the end the illness took her, however at least I know she is now at peace and she will be greatly missed by all of us To you Vicky and Vince my most deepest and sincerest sympathies and condolences, I really feel your pain through this dark and cloudy times, for you more than any one know how we felt about each other, and the mountains we had to climb together as a couple and as a family, just remember one thing, you have also gained a son now who loves you both very much and will always be there for you no matter what. To all the of you who have come here today to farewell Fiona with us, thank you so much for coming i know this would mean a lot to her As hard as this is to say at a moment like this, I'm deeply grateful to God for giving me the opportunity to meet my soul mate in life, eventhough it was not long enough at least I was given the chance to meet her in this lifetime, and for the experiences and unremarkable times we shared together as a couple, I will cherish them and treasure them for the rest of my life in this world and until eternity. Farewell my Love I Love you so much 50The order of funeral booklet distributed in Fiona's funeral (Exhibit P2) contained several photographs of Fiona. The inside of the front cover of the booklet contained a large photo of Mr Ploder and Fiona embracing, with a caption, written by Mr Ploder, which read as follows: Bubba I didn't get a chance to say goodbye to you, I will miss you, and I'll hold you here in my heart forever. Thank you for being you: for who you are, the good times we shared, the special memories you have left behind will never be forgotten. With all my love Enzo 51Mr Ploder alleges that shortly after Fiona's death, the defendant said to him that Fiona would have wanted him to keep the house, and that he responded by asking how that would be possible if the defendant was going to take 95% of the house. 52Ms Mammoliti alleges that, after receiving a series of missed calls from Mr Ploder between 18 and 22 February 2011, she finally managed to make telephone contact with him shortly after 25 February 2011. According to Ms Mammoliti, Mr Ploder was weeping as he told Ms Mammoliti that Fiona had taken her life, and that he had been trying to call her to inform her of the funeral which was held on 25 February 2011. Ms Mammoliti says she then asked Mr Ploder if she could speak with the defendant to convey her condolences, that she then spoke to the defendant on the same call, and that the defendant indicated she wanted Mr Ploder to repay the sum of $100,000 advanced by the defendant for the purchase of the Wetherill Park residence, plus Fiona's contribution of $65,000. 53Mr Ploder alleges that after Fiona's death, the defendant attended the Wetherill Park premises, entered the Mr Ploder and Fiona's joint bedroom, and removed from the wardrobe Fiona's clothes and personal items. The defendant accepts that she attended the Wetherill Park residence to collect Fiona's belongings, but alleges that there were no personal items or clothing belonging to Fiona in Mr Ploder's bedroom. 54On 7 March 2011, the solicitors retained by the defendant, Georgiou Solicitors & Attorneys & Co, responded to a letter apparently sent from the plaintiff's solicitors, Hall Partners, dated 1 March 2008. The letter of 7 March 2011 from the defendant's solicitors included the following statement: In your correspondence you refer to your client as the "finance" (sic) of the Deceased. We are instructed that Miss Garcea was not living in a de facto relationship with your client and she had not been in such a relationship with him at any time. It is our client's present intention to attend to collect the rest of her daughter's possessions. Please advise you (sic) client accordingly and confirm that amicable arrangements may be made for the collection of Miss Garcea's property without the need for any assistance from the Fairfield Patrol of the NSW Police. 55On 18 April 2011, solicitors retained by the defendant, Georgiou Solicitors & Attorneys & Co, wrote a letter to the solicitors acting for Mr Ploder in the following terms: Put at its highest, the relationship between Miss Garcea and your client was no more than a girlfriend/boyfriend relationship. They were not engaged to be married and they most certainly were not living in a de facto relationship as husband and wife...or even a close personal relationship. The friendship was of short duration. The parties "shared" a common residence for less than one week, there was no degree of financial interdependence between the parties, there was no mutuality of the performance of household tasks and there were no public aspects of a de facto or even domestic or close personal relationship. My clients deny any sexual liaison between Mr Ploder and their daughter. I am instructed that she was simply not well enough to engage in sexual activity notwithstanding her strict religious beliefs. ... The sum of $100,000 was advanced by our client to her daughter and Mr Ploder as a loan, no matter how the transaction was characterised for the benefit of the registered first mortgagee. 56Some time probably after 29 June 2011 and certainly before 2 December 2011, Mr Ploder applied to First State Super (with whom Fiona held a superannuation account) to receive payment of the superannuation benefit, amounting to about $320,000. By way of background, during Fiona's employment as a school teacher, she had made a number of superannuation contributions through a salary sacrifice arrangement, and in a form dated 28 October 2008 (which is only about nineteen days after the date of her will), Fiona specified the defendant as the death benefit nominee. 57On 2 December 2011, First State Super wrote to Mr Hall, the solicitor for Mr Ploder, advising that it was determined that Mr Ploder's application, to receive payment of 100% of the superannuation benefit following Fiona's death, was effectively granted. On 12 June 2012, First State Super issued a further letter to Mr Hall indicating that, after receiving and considering an objection from the defendant to the initial determination, First State Super's Disputes Committee confirmed its determination that Mr Ploder would receive 100% of the deceased's superannuation benefit. First State Super's initial determination and subsequent confirmation of it, were based on its assessment of Mr Ploder's relation to the deceased as "de facto spouse". The defendant decided to escalate the matter to the Superannuation Complaints Tribunal and the Federal Court of Australia. 58There is further evidence of a more general nature which is relevant (or alleged to be relevant) to the nature of the relationship between the parties. I will identify and discuss that evidence under subsequent headings. Other evidence relevant to the factual background 59Much of the evidence filed on behalf of the defendant was directed to establishing that Fiona held firm religious convictions against engaging in sexual relations outside of a marriage relationship. From this, the defendant sought an inference to be drawn that it was unlikely that Fiona engaged in sexual relations with Mr Ploder, as they were yet unmarried. 60Allegedly as a testimony to the strength of Fiona's convictions, the defendant stated, in her affidavit (dated 21 October 2011), that Fiona had undertaken, and graduated in March 2007 with, a Diploma and an Advanced Diploma in Community Services, at the Christian City Church. For the same purpose, the defendant asserted in her affidavit that Fiona was baptised a Catholic at St Theakis on 14 November 1970, that she was educated at Catholic primary and high schools, that she attended church regularly during her schooling days, that she was well-known in the church congregation, that her first marriage to Carlo Beneditti on 28 January 1995 was a Catholic ceremony (I note the marriage was later dissolved in September 2000), that she was a member of Australian Home Missions for some years, that she was involved in the Christian City Church at Ryde, and that her funeral involved a Catholic priest. 61The defendant also alleges that during conversations with her daughter from October 2010 at the Concord residence, Fiona said "you don't need to worry about me having a sexual relationship I have no libido in any event because of the medication I am on ... I will not be giving my body to any body until I am married". The defendant also alleges that on 12 February 2011, when Fiona and Mr Ploder were moving into the Wetherill Park residence, Fiona asked her mother to have Mr Garcea set up Fiona's bed in Fiona's bedroom. 62Nola Blake (Ms Blake), the Director of Australian Home Missions Incorporated and a religious worker, swore an affidavit (dated 21 April 2012) alleging Fiona had played an active role in Australian Home Missions and had said to Ms Blake on a number of occasions that she would not have sexual relations outside of marriage. Additionally, as already mentioned, Ms Alessio swore an affidavit alleging Mr Ploder admitted he did not have sexual relations with Fiona. 63In response to the defendant's evidence, an affidavit was filed on behalf of the plaintiff by a Mr Joseph Ciccotti (Mr Ciccotti), a former close friend of Fiona, to the effect that, on approximately five occasions during March or April of 2004, he and Fiona had engaged in sexual relations. They were not married nor engaged. This is in addition to Mr Ploder's own direct evidence that he and Fiona had sexual relations. I should add however that Mr Ciccotti was ultimately not cross-examined, as the proceedings had settled between the time that he was called and the time that he arrived. Findings as to the contested factual issues 64Normally when a matter settles before judgment, the degree to which a judge can express views about the outcome, for the purposes of resolving costs questions, is limited. In this case, however, I have heard all the witnesses in the case, except for Mr Ciccotti, and I feel that I am therefore in a position to express firm views on a number of critical contested issues in the matter. This accords with McHugh J's comments in Re The Minster for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625. 65One point of contest was whether Mr Ploder and Fiona were ever engaged. As I observed in my previous judgment, the evidence plainly indicates that although the relationship between Mr Ploder and Fiona was brief, it was intense, moving, within a matter of months, from correspondence over the internet to purchasing, and living together in, the Wetherill Park residence (Enzo Jair Ploder v Vittoria Angelina Garcea (as executor of the estate of the late Fiona Rita Garcea) [2013] NSWSC 201 at [26]). In my view, the evidence compels a finding that Mr Ploder and Fiona were engaged at a time earlier than, and certainly by, 30 November 2010. 66Both Mr Kasic and Ms Rodriguez gave evidence that in June and July of 2010, Mr Ploder referred to Fiona as his "girlfriend" and "partner", and Fiona said they were planning on marrying. 67By September 2010, there is evidence, given by an independent witness (namely Ms Mammoliti), that Mr Ploder referred to Fiona as his "fiancé", several times, in the presence of the defendant, during a meeting on 20 September 2010. Ms Mammoliti also gave evidence that, at the same meeting, and also in the presence of the defendant, Fiona made reference to her expected wedding to Mr Ploder. Ms Mammoliti also gave evidence that the defendant herself, both at the meeting of 20 September 2010 and in a subsequent telephone conversation in October 2010, referred to an expected wedding of Mr Ploder and Fiona. In response to questions put to Ms Mammoliti in cross-examination challenging the accuracy of her recollection, she asserted that, as a finance broker by profession, she had reason to remember conversations she had with her clients (T119.23-T119.34). 68In addition to this, there is evidence from Mr Kasic that, in November 2010, Mr Ploder said he was engaged to Fiona, and there is evidence from Mr Ploder that he formally proposed to Fiona. By 6 February 2011, there is evidence, from Mr Riley, that Mr Ploder referred to Fiona as his fiancé. Mr Riley was an independent witness. While he candidly accepted that, contrary to what was in his affidavit, he could not recall any mention of proposed wedding dates (T230.37-T231.4), he confirmed that Mr Ploder and Fiona said they were engaged (T230.31-T230.35). 69In addition to the testimony of these witnesses, the objective evidence compels the same conclusion. In her statutory declaration dated 27 September 2010, the defendant referred to an expected "wedding celebration" for her daughter. The text and tone of the letter written by Fiona to Mr Ploder on Christmas Day 2011 is a powerful indication, from the deceased, of her understanding of the strength of her relationship with Mr Ploder. Medical documents completed by Fiona, in preparation for an intragastric balloon procedure, identified Mr Ploder as "de facto", "partner" and "next of kin". On 23 February 2011, following the death of Fiona, the defendant caused to be published in The Daily Telegraph newspaper an obituary referring to Mr Ploder as Fiona's fiancé. Again, the text and tone of Mr Ploder's publicly delivered eulogy on 25 February 2011 strongly reciprocates that of Fiona's Christmas Day letter, and the fact that Mr Ploder delivered a eulogy is of itself suggestive of the strength of his relationship with Fiona. Finally, the inside cover of Fiona's order of funeral booklet contains a large photograph of Mr Ploder and Fiona embracing, with a caption written by Mr Ploder. 70Against this mass of testimonial and objective evidence, the defendant gave evidence directed to trivialising the relationship between Mr Ploder and her daughter. One aspect of that evidence sought to deny that Mr Ploder and Fiona were ever engaged. For example, the defendant asserted that, even in late 2010, Fiona only ever referred to Mr Ploder as her "boyfriend" and not "fiancé". The defendant also alleges that she (i.e. the defendant) only referred to Mr Ploder by the Italian word "fidanzato", which is alleged to mean either "fiancé" or "serious boyfriend/girlfriend", and that she always intended to use the word in the latter sense. 71I have no difficulty finding that Mr Ploder and Fiona were engaged to be married, and I reject the defendant's evidence to the contrary. I have arrived at this conclusion on the basis of the sheer weight, and independent nature, of the evidence consistent with the plaintiff's allegations. I am also not satisfied that the defendant did not understand that Mr Ploder and Fiona were engaged. Whatever the defendant's understanding of the Italian word "fidanzato", the defendant accepted that she selected the English wording of the obituary published in The Daily Telegraph on 23 February 2011. Although the defendant is of Italian background, she accepted that she understood and could read English fluently (T184.19-T184.23), and she did not require the assistance of an interpreter when giving oral evidence (T184.28-T184.29). This is unsurprising, as she has been living in Australia for 52 years (T184.25-T184.26). The defendant's selection of the English word "fiancé" in the obituary is therefore particularly telling, and on one view amounts to an admission that Mr Ploder and Fiona were engaged. Any strength in the defendant's submission is further reduced when one appreciates that Mr Ploder himself did not fluently speak Italian. In my view, the evidence is such that the defendant should not have contested the plaintiff's formal characterisation of his relationship with the deceased. 72Although the plaintiff failed to call his parents to corroborate his assertion that he formally proposed to Fiona in their presence on 30 November 2011, I do not consider that omission to materially detract from the strength of his case. In my view, it was unnecessary for the plaintiff to call his parents to give evidence, given the strength of the evidence already corroborating his assertion that he was engaged. 73The evidence also favours a finding that the duration of Mr Ploder and Fiona's period of cohabitation was approximately of the length contended for by Mr Ploder. Mr Ploder gave evidence that, on 17 October 2010, in the presence of Fiona's parents, Fiona proposed to move to the Ingleburn residence to live with Mr Ploder. Mr Ploder also gave evidence that, despite their reservations, the defendant and Mr Garcea agreed to the proposal as they thought it was in Fiona's best interests to do so. Consistent with this, Mr Kasic gave affidavit and oral evidence that, whenever he visited Mr Ploder's house from about late October 2010, he noticed a black Toyota Yaris (being Fiona's car) parked outside Mr Ploder's house, and he sometimes observed Fiona having breakfast with Mr Ploder. Mr Chapman, the resident neighbouring the Ingleburn residence, gave evidence that, in the early morning and late in the afternoon, he too noticed, "more often than not", a black Toyota Yaris parked outside of Mr Ploder's house. Although Mr Chapman accepted in cross-examination that he had no particular reason to remember the vehicles parked in the street in front of his house (T144.9-T144.11), I nonetheless accept his evidence, because he was living next door to Mr Ploder, and was therefore clearly in a position to assert that, overall, he saw the relevant Toyota Yaris "more often than not". To avoid repetition, I simply note that Mr Tolomeo and Ms Rodriguez likewise gave evidence supporting Mr Ploder's assertion that Fiona was living with him at the Ingleburn residence from about late October 2010. 74Again, in addition to this testimonial evidence, there is objective evidence supporting Mr Ploder's allegation. On the medical documents completed by Fiona in preparation for her proposed intragastric balloon procedure, she specified the Ingleburn residence as her address. Although the documents were completed on 11 January 2011, they contradict the defendant's assertion that Fiona never lived with Mr Ploder until they moved into the Wetherill Park residence on 12 February 2011. Importantly, there is simply no plausible reason why Fiona would specify the Ingleburn residence as her address in the medical documents if she was in fact living at the Concord residence. 75On the other hand, in a number of the documents relating to the application for finance for the proposed purchase of the Wetherill Park residence, Fiona's address is specified as the Concord residence. Mr Ploder said that Fiona did so, not because she was actually living at the Concord residence, but simply as a formality, in order to avoid any difficulties that may arise from having an address on her driver's licence (being the Concord residence) inconsistent with what was written on the finance application documents. 76I think there is a strong basis for, and therefore accept, Mr Ploder's assertion that Fiona's selection of the Concord residence as her address on the finance application documents was not because she actually lived there. First, there is the explanation given by Mr Ploder. Secondly, there is evidence to suggest that an inconsistency in an applicant's address of the type described by Mr Ploder would have resulted in interruptions in the conveyancing transaction (see Exhibit D4 for example). Thirdly, the meetings with Ms Mammoliti took place well before the date on which Mr Ploder asserts Fiona moved into the Ingleburn residence with him. It is true that the actual finance application documents bear a date which is after 19 October 2010, but it is possible that Mr Ploder and Fiona were intent on providing information in those forms consistent with information they had previously provided to Ms Mammoliti during the meetings on 20 and 27 September 2010. Fourthly, because Mr Ploder and Fiona were aware of both the defendant's involvement in the finance application process and of the defendant's religious beliefs, it is possible they felt serious hesitation in specifying Fiona's address on the finance documents as that of the Ingleburn residence. 77Again, I consider that the evidence compels a finding that Fiona was living with Mr Ploder in the Ingleburn residence from about late October 2010. 78Another matter strongly contested throughout the entirety of the hearing was the degree of intimacy of the relationship between Mr Ploder and Fiona. The issue appears to have arisen because Mr Ploder asserted in his affidavit dated 29 June 2011 that he was "living in a domestic relationship with Fiona", and that they had been "living together as a couple". Although Mr Ploder does not expressly state what he intended to convey by the terms "domestic relationship" and "as a couple", it is probable he was attempting to pick up the relevant legislative language in order to bring himself within the meaning of an "eligible person" for the purpose of s 57 of the Succession Act (see for example Interpretation Act 1987 s 21C and Property (Relationships) Act 1984 s 5). In any event, the defendant responded by asserting, in the plainest and strongest of terms, that Fiona had not been engaged in any sexual relations with Mr Ploder. 79I have already set out in some detail the nature and substance of the evidence advanced by the defendant to support her submission that Fiona was not engaged in sexual relations with Mr Ploder (see [59]-[62] above). For a number of reasons, I cannot accept the defendant's submission. First, it is plain that the only person capable of giving direct evidence of the particular level of intimacy involved in the relationship, is the plaintiff himself. Secondly, there is an obvious difference between evidence of Fiona's beliefs (religious or otherwise) as advanced by the defendant, and evidence of a person's actual conduct as advanced by the plaintiff. Thirdly, for reasons I will come to, the evidence given by Ms Blake (as to Fiona's religious convictions) should be accorded little or no weight, and the evidence given by Ms Alessio (that Mr Ploder allegedly admitted that he and Fiona had not engaged in sexual relations) should be accorded no weight. Fourthly, it was not directly put to Mr Ploder during cross-examination that he and Fiona had not engaged in sexual relations. Fifthly, once it is accepted, as I have found, that Mr Ploder and Fiona were engaged to be married, were living together, in a home they had purchased together, and were planning a future together, the circumstantial evidence, if it suggests anything, certainly favours the position of intimacy contended for by Mr Ploder. 80Ms Blake's evidence that Fiona privately stated to her that she would not have sexual relations outside of marriage, is entirely devoid of any reference to time, year or reason. Her evidence is entirely devoid of context, and I therefore consider it to be of minimal value, at best. 81As to Ms Alessio's evidence, it should not be accepted. There is an inherent implausibility, and a significant inconsistency in Ms Alessio's evidence. I have difficulty accepting, as a matter of probability, that on the same day Fiona took her own life, Ms Alessio would, after flying into Sydney from Victoria, have the insensitivity to ask Mr Ploder, at the conclusion of the day, after meeting him for only the first time, and in the background of the tragic circumstances, whether in effect he had sexual relations with Fiona. During cross-examination, Ms Alessio attempted to explain that the obvious inappropriateness of the topic was mitigated her first asking Mr Ploder if she could "ask him a personal question" (T216.1-T216.3). In her affidavit evidence, however, there is no mention of any such prefatory question. Rather, Ms Alessio suggests that the topic was first approached by Mr Ploder, who is alleged to have said "[Fiona] was very self conscious ... she didn't even want me to see her naked". The inconsistency between Ms Alessio's affidavit and oral evidence is of critical significance. The significance arises by reason of the inherent improbability of the topic being raised in a conversation, in that context, and therefore casts real doubt on the truth of Ms Alessio's assertions. 82There are other difficulties with Ms Alessio's evidence. When asked, during cross-examination, to identify the reason why she would even be interested, or consider it appropriate, to ask whether a woman who had just died was having sexual relations with Mr Ploder, Ms Alessio explained "I wanted to know that she had some happiness" (T216.34-T216.37). When Ms Alessio was further questioned about what she meant by "happiness", she appeared to retract her evidence and responded "well, I didn't ask if he had sex with her" (T216.39-T216.41). Somewhat inconsistently, Ms Alessio later asserted that she was in fact pleased, when Mr Ploder allegedly admitted that he had not engaged in a sexual relationship with Fiona (T217.14-T217.18). When Ms Alessio was asked to explain the apparent inconsistency in her answers, she said "we were all very upset that day so I guess there were lots of feelings going on" (T217.26). I found Ms Alessio to be an unsatisfactory witness. 83In his affidavit and oral evidence, Mr Ploder denied speaking with Ms Alessio about whether he had sexual relations with Fiona, and I accept Mr Ploder's denial. 84I have little doubt that the defendant's religious beliefs as a Catholic were apparent to Mr Ploder. Indeed, Mr Ploder candidly accepted that on the occasions when he spent a night at the Concord residence with Fiona's parents, he did not sleep in the same bedroom as Fiona, as it would have been "disrespectful" (T171.40-T171.41). I do not think that this frank concession detracts from the strength of Mr Ploder's position on his alleged level of intimacy with Fiona. I consider his explanation (namely his desire to avoid offending Fiona's parents) to be entirely plausible, considerate, and not inconsistent with his evidence regarding his degree of intimacy with Fiona privately. 85The relevance of the evidence advanced on behalf of the defendant as to Fiona's religious convictions is further lessened by Mr Ploder's evidence that, as a result of Fiona's previous marriage and divorce, she "had a big falling out with the Roman Catholic Church" and "wanted nothing to do with Roman Catholics" (T138.7-T138.11). Mr Ploder's evidence is objectively corroborated by the medical documents completed by Fiona in preparation for the intragastric balloon procedure, where she specified her religion as "Pentecostal". Therefore, whatever Fiona's religious convictions may have been for some years, and whatever relevance such beliefs may have had to this case, there is objective evidence to cast doubt on whether she maintained those beliefs at the time she was in a relationship with Mr Ploder. 86To support her assertion that Mr Ploder and Fiona were not engaged in sexual relations, the defendant gave evidence that, even after Mr Ploder and Fiona had moved into the Wetherill Park residence, there was some form of strict separation of living. I have already set out the substance of that evidence (see [44] and [53] above), and do not propose to repeat it. An obvious limitation on that evidence, which the defendant accepted, was that she never spent a night at the Wetherill Park residence (nor for that matter at the Ingleburn residence). Mr Ploder and Ms Rodriguez give evidence to a contrary effect to that of the defendant, namely that Mr Ploder and Fiona were sharing the same bedroom and bathroom. 87For all of the reasons identified above, I consider the defendant's position as to the degree of intimacy of the relationship between Mr Ploder and Fiona, to be untenable. 88As to the proper characterisation of the $100,000 advanced by the defendant towards the purchase of the Wetherill Park residence, the defendant initially unequivocally stated in the statutory declaration dated 27 September 2010, that it was a gift. On 18 April 2011, solicitors retained by the defendant, Georgiou Solicitors & Attorneys & Co, wrote a letter to the solicitors acting for Mr Ploder, alleging it was provided as a loan. In an affidavit dated 21 October 2011, the defendant alleged she "contribute[d]" $100,000 towards Fiona's purchase of the Wetherill Park residence, and that it's true character was a loan. In her pleadings in these proceedings, namely her defence, dated 15 March 2012 and filed 22 March 2012, the defendant admitted that the sum of $100,000 was provided as a gift from the defendant to Fiona for the purchase of the Wetherill Park residence. In her affidavit dated 14 February 2012, the defendant said the sum of $100,000 was a gift. On 26 March 2013, which was during the proceedings before me, the defendant was pressed to take a final position on the issue, and conceded that the money was advanced as a gift. Prior to providing an answer, she was granted, on the application of her counsel, a certificate under s 128 of the Evidence Act 1995 (see from T194 and following). The defendant's concession in cross-examination is consistent with the evidence advanced on behalf of the plaintiff. 89The concession was certainly appropriate, but made too late in the litigation. Much of the written evidence and debate prior to this point was directed to establishing the legal character of the advance. Those efforts were therefore ultimately unnecessary and wasteful. 90Having heard the evidence, I have no difficulty in finding that on each of the contested factual issues, namely whether Mr Ploder and Fiona were engaged, the duration for which they had been living together, whether they had been engaged in sexual relations, and the characterisation of the advance of $100,000 (even had the concession not been made), I would have found in favour of the plaintiff. The parties' conduct in settlement negotiations 91For the purpose of this question of costs, Mr Ploder and the defendant each adduced evidence seeking to establish the reasonableness of their own respective position in settlement negotiations, and the unreasonableness of the position adopted by the other party. Having reviewed this evidence, and the multitude of offers and counter-offers made during the life of this litigation, I have come to the same view expressed in my earlier judgment (Enzo Jair Ploder v Vittoria Angelina Garcea (as executor of the estate of the late Fiona Rita Garcea) [2013] NSWSC 201). That is, I consider the position taken by the parties in settlement negotiations to be a neutral factor, insofar as it is relevant to the question of costs. Financial positions of the parties 92According to Mr Ploder's affidavit (dated 29 June 2011), his total assets consist of his 5% legal interest in the Wetherill Park residence, a company vehicle which as at the date of his affidavit is worth approximately $35,500 (and is encumbered), $49,197.43 in superannuation with Australian Superannuation Fund, and minor household and personal items. Also as at 29 June 2011, Mr Ploder was self-employed for approximately six years in a small business, operated though a corporate entity, Future Express Pty Ltd, selling welding consumables. His income, as noted in further affidavit (dated 8 August 2012) amounts to approximately $1,000 per week. 93According to the defendant's affidavit (dated 15 March 2012), the defendant's assets consisted of cash slightly in excess of $100,000 in total held in various bank accounts (generating interest income), the Concord residence, and two apartments in Burwood (as investment properties generating rental income). There is no indication in her affidavit that any of her properties are encumbered. In a subsequent affidavit (dated 6 August 2012), the defendant updated her financial position, indicating that her total cash holdings had been reduced to approximately $30,000, and that she owned and rented out the two Burwood units referred to in her affidavit of 15 March 2012, but there is no reference to the Concord residence. In a Centrelink Statement annexed to her 6 August 2012 affidavit, her total combined assets were specified as $878,773, and her annual combined income was specified as $30,493.18. In a brief further affidavit (dated 10 August 2012), the defendant stated that she and Mr Garcea did still own the Concord residence, that it was unencumbered, and estimated its value to be $850,000. 94According to the defendant's affidavit of 10 August 2012, approximately $1,000 of Fiona's estate was spent on funeral expenses, and a further $1,700 was spent on payment of Fiona's bills and other expenses. In a further affidavit, dated 27 March 2013, the defendant indicated that her total cash holdings had reduced to just under $10,000, that her income from investment properties remained the same as explained in previous affidavits, and that she and her husband were receiving approximately $471.40 per fortnight from Centrelink. 95During the course of the hearing before me, an affidavit of the defendant, dated 28 March 2013, indicated that Fiona's funeral and testamentary expenses were approximately $50,000, reducing the net estate by more than half, immediately driving a settlement on 28 March 2013 in the terms outlined above. Merits of the family provision claim 96In Hamilton v Moir [2013] NSWSC 1200 (handed down on 2 September 2013), Hallen J analysed the approach a court should take when determining a family provision claim. His Honour noted an apparent tension between the approach taken by the Court of Appeal in Andrew v Andrew (2012) 81 NSWLR 656 and the long established two-stage approach (which appears to have been followed in Franks v Franks [2013] NSWCA 60). Hallen J expressed the view that the provisions of the Succession Act do not require or justify anything different to the two-stage approach. I agree with Allsop P, that whether or not there has been a subtle change in approach is an analytical question of probably little consequence. Hallen J went on to analyse, in some detail, non-controversial principles established by the authorities, relating to determining eligibility for family provision (under s 57 of the Succession Act) and whether to make a family provision order and the nature of any such order. 97I am satisfied that Mr Ploder is an eligible person by reason of s 57(1)(b) of the Succession Act. In particular, I am satisfied that Mr Ploder were living in a de facto relationship, as defined in the Interpretation Act 1987 s 21C(2). I have comfortably come to this view on the basis of my findings that the duration of the relationship (s 21C(3)(a)) was of the length contended for by Mr Ploder, that they totally or substantially shared a common residence (s 21C(3)(b)), that the duration of cohabitation was of the length contended for by Mr Ploder (s 21C(3)(b)), that a sexual relationship existed (s 21C(3)(c)), that they were in a significant respect financially dependent on each other (21C(3)(d), and I note that this point was effectively conceded by the defendant, see T200.47-T201.50), that they owned and used property together (s 21C(3)(e)), that they were intensely and mutually committed to a shared life (s 21C(3)(f)), and that they were plainly publicly held out as a couple (s 21C(3)(i)). 98It would next be necessary for the court to consider whether adequate provision for the proper maintenance, education or advancement in life of Mr Ploder has not been made by Fiona's will (s 59(1)(c)). I note that the requirement under s 59(1)(b) does not apply to the facts of the present case, as Mr Ploder's eligibility does not arise under paragraph (d), (e) or (f) of the definition of eligible person in s 57. I do not propose to make a finding of any figure for provision, nor do I think it would be appropriate to do so, as the litigation has settled. It is sufficient to say that, having considered the factors enumerated in s 60(2) to which the court is to have regard when determining whether to make a family provision order and the nature of any such order, Mr Ploder clearly enjoys a strong position. His primary weakness is the brevity of his relationship with Fiona. 99Similarly, I do not propose to make any finding as to whether there was an agreement between Mr Ploder and Fiona in the terms alleged by Mr Ploder. It is sufficient to say that, in my view, although there is some inconsistency in Mr Ploder's evidence about when the alleged agreement was formed, the circumstantial evidence strongly favours Mr Ploder's position. To the extent the credibility of each of the parties is relevant to this issue, I would generally prefer the evidence of Mr Ploder over that of the defendant. However, I express no views as to the conclusion I would have arrived at. Appropriate costs orders 100Generally, there must be some proper justification, positive ground or good reason for departing from the ordinary position under r 42.20 that the plaintiff pays the defendant's costs of the proceedings to the extent to which they have been dismissed (Fordyce v Fordham at [2], Australiawide Airlines Ltd v Aspirion Pty Ltd at [54]). This means that r 42.20 intrudes upon the pattern laid down by McHugh J in Re The Minster for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin (1997) 186 CLR 622 at 624-625, although the matters referred to there by McHugh J remain pertinent (Fordyce v Fordham at [87]). This means that all the relevant circumstances, and not just the fact of dismissal, should be considered. That is why I have considered the evidence and conduct of the parties in this case in some detail. 101As Hamilton AJ noted in Metro Hotel Sydney Pty Ltd v Kol Tov Pty Ltd, when considering the application of r 42.20, it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event, or settlement, so removes, or modifies, the subject of the dispute that, although it could not be said that one side has simply won, no issue remains between the parties except that of costs (at [8], citing Hallen AsJ (as his Honour then was) in McNamara v Bao San [2010] NSWSC 809 at [12(h)]). Although the form of the orders ultimately made by consent provided for the dismissal of the plaintiff's claim, I certainly do not consider the plaintiff to have simply surrendered. Clearly, it is the belated affidavit of the defendant, disclosing that the estate had been reduced to less than half of what it was thought to have been, that primarily it seems to me prompted the settlement. There was simply no remaining commercial purpose in continuing with the litigation. 102Circumstances in which it has been held appropriate to depart from the ordinary position include where the proceedings have been rendered unnecessary by circumstances beyond the plaintiff's control, where the plaintiff achieved practical success in the proceedings, or where costs have been significantly increased by the unreasonable conduct of the defendant. With these principles in mind, and at the expense of some repetition, I propose to make a number of observations. 103Given the strength of the objective evidence as I have outlined above, the defendant should not have contested the plaintiff's assertion that he was engaged to Fiona. For the same reason, the defendant should not have contested that the sum of $100,000 was advanced by her as a gift to Fiona. For the same reason, the defendant should not have contested that Fiona and Mr Ploder were planning on marrying. The defendant was not in any position to deny, she simply had no cogent evidence to deny, and she should therefore note have denied, Mr Ploder's assertion that there was a sexual element in his relationship with Fiona. The defendant contended, against a mass of oral evidence provided by relatively independent witnesses, and without any cogent evidence on her part, that Fiona spent no time living with Mr Ploder at the Ingleburn residence. The defendant was barely prepared to concede that Mr Ploder and Fiona had moments of privacy to themselves, but insisted that, even when they had moved into the Wetherill Park residence, she was present from the early hours of the morning to approximately 11:00pm every day. Sadly, almost all of the evidence and court's time was directed to these factual matters. 104In my view, the appropriate course the defendant should have taken was to present her opposition to the plaintiff's claim for provision on the basis of the brevity of the relationship, the absence of a formal marriage ceremony, or anything else that may have been relevant. Instead, she has incurred legal fees in excess of $400,000 to put into issue a number of matters that should never have been seriously contested. 105The defendant's persistent and glaringly unreasonable denial of the plainly apparent facts added a significant degree of heat to the dispute and created a situation of understandable frustration and outrage on the part of the plaintiff. Having analysed the evidence in some detail above, I am left in no doubt whatsoever that the appropriate costs order is for the defendant to personally pay the plaintiff's costs. However, I refuse the plaintiff's claim to have such costs assessed on an indemnity basis, as I do not consider the defendant's conduct to have reached such a level as to attract indemnity cost consequences (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 per Woodward J). 106It is necessary to consider whether the defendant should be entitled to seek recourse to the estate for the payment of her costs and/or of costs ordered against her. The defendant acknowledges that due to the small size of the estate, its dissipation on account of expenses, and the enormity of her legal costs, an order entitling her to her costs out of the estate is practically futile. In any event, ordinarily, under r 42.25, the defendant would, as executrix, be entitled to her costs out of the estate. An exposition of the relevant principles emerging from the authorities can be found in the case of Drummond v Drummond [1999] NSWSC 923 (per Austin J at [42]-[47]). 107In Miller v Cameron (1936) 54 CLR 572 (at 578), Latham CJ explained that "as a rule, a trustee is allowed his costs out of the trust estate if his conduct has been honest, even though it may have been mistaken". In Re Weall; Andrews v Weall (1889) 42 Ch D 674 (at 677), Kekewich J spoke of the "tenderness which the Court is anxious to exhibit towards trustees honestly exercising discretion in discharge of their duties, often difficult and still more often thankless". In Re Jones; Christmas v Jones [1897] 2 Ch 190 (at 197) the same Judge said that "a man who fulfils the difficult duties of an administrator, executor or trustee is, in common sense and common justice, entitled to be recouped to the very last penny everything that he has expended properly - that is to say, without impropriety - in his character of administrator, executor or trustee ...". 108However, one of the two exceptions identified by Austin J, in the authorities, is where the trustee acts obstructively, unreasonably, in disregard of their clear duty. Even if there is no dishonesty in any positive sense, Austin J considered it would be sufficient if a claim was defended on a basis which no reasonable person could say should be put forward, by an executor or otherwise (Austin J at [46]). Additionally, costs incurred in the administration and distribution of the estate are to be distinguished from costs incurred by an executor in furtherance of a personal interest (Austin J at [47], citing Miller v Cameron at 578-579). Executors who pursue personal interests in litigation are "not fighting for the estate any more than if they were not executors at all" (Skrimshire v Melbourne Benevolent Asylum (1894) 20 VLR 13 at 18 per Madden CJ). I consider the words of Mahoney JA (Meagher and Handley JJA agreeing) in Nowell v Palmer (1993) 32 NSWLR 574 (at 581) to be particularly apt to the circumstances of the case presently before me: ... in the present case, the [executrix], in defending the proceeding, was not acting as, or merely as, the executrix of the estate. She was, in a real sense, defending her own interests. She was the sole beneficiary of the estate. In addition, she had purported to distribute the estate to herself ... ... The proceeding was essentially a defence by the [executrix] of her own interests. 109The defendant submitted that the court is entitled to, and should, take into account the allegedly severe detrimental effect of any personal costs order against the defendant. As Gaudron J observed in Singer v Berghouse (1993) 114 ALR 521, it is not uncommon, in cases of unsuccessful family provision applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. Further, there may be circumstances in which it is appropriate for the costs of an unsuccessful party to be paid put of the estate. Comments to the same effect were made by Palmer J in Sherborne Estate (No 2); Vanvalen v Neaves (2005) 65 NSWLR 268 (at [61]-[66]), where his Honour declined to order costs against an unsuccessful applicant for family provision. His Honour considered that "a refusal to make the usual costs order against [the unsuccessful applicant for provision] would have adverse consequences on [the successful defendant] as well, but the overall effect on [the defendant's] position would not be nearly so severe". 110The defendant seeks to apply those principles, "by analogy", to an executrix defending a family provision claim. I have reservations about the applicability of those principles in favour of the defendant. In any event, even if those principles were applicable by analogy, the gross disparity between the respective financial positions of the plaintiff and the defendant in this case operates in favour of the plaintiff, who is of relatively modest financial position. I think the costs position of the defendant, as executrix, falls to be determined by reference to the cases I have identified above, and I am not persuaded that the defendant's financial position, especially in comparison to that of the plaintiff, introduces a discretionary factor in her favour. 111I propose, in light of my discussion above, to make an order pursuant to r 42.25(2), that the defendant's costs not be paid out of the deceased's estate. 112I am mindful that the costs orders made in respect of three separate interlocutory applications during the course of these proceedings were costs in the cause. Those interlocutory applications included an unsuccessful application by the plaintiff to amend his summons (the Amendment Application), an unsuccessful application by the defendant to transfer separate proceedings commenced by the plaintiff in the local court (the Transfer Application), and an unsuccessful application by the plaintiff to discontinue the proceedings on other than the usual order as to costs (the Discontinuance Application). In my view, the defendant correctly submitted that, as the proceedings ultimately settled, the costs orders in respect of those applications must be varied. I consider the appropriate course to adopt is that, with respect to each application, the unsuccessful party pays the costs of that application (all on an ordinary basis). Therefore the costs of the Amendment Application should be borne by the plaintiff, the costs of the Transfer Application should be borne by the defendant, and the costs of the Discontinuance Application should be borne by the plaintiff. 113I invite the parties to prepare and send to my Associate short minutes of order giving effect to these reasons. I note, perhaps repetitively, that the costs in relation to each of the costs orders proposed above should be as agreed or assessed, on an ordinary basis, and that none of the costs orders should be satisfied out of the estate. ********** Amendments 20 September 2013 - Added hearing and submissions dates and party detail correction. Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2013