Morgan v Bohm [2013] NSWSC 145 (12 February 2013)

Last Updated: 8 March 2013

This decision has been amended. Please see the end of the decision for a list of the amendments.

Supreme Court New South Wales

Case Title:	Morgan v Bohm
Medium Neutral Citation:	[2013] NSWSC 145
Hearing Date(s):	25-26 October 2012, 1, 7 and 16 November 2012
Decision Date:	12 February 2013
Jurisdiction:	Equity Division
Before:	Macready AsJ
Decision:	(1)I order that the plaintiff receive a legacy out of the estate of the deceased of $225,000. (2)Subject to any submissions made within 7 days of this order, I order that the plaintiff's costs on the ordinary bases and the defendant's on the indemnity bases be paid out of the estate of the deceased and the notional estate of the deceased. (3)Interest is to run and the legacy at the rate provided for in the Probate and Administration Act 1898 from three months from today. (4)I designate as notional estate to the extent necessary to meet the payments above, the deceased's share of property jointly owned by the deceased and the defendant in Walter St, Paddington, New South Wales. (5)Reserve liberty to apply.
Catchwords:	SUCCESSION - family provision and maintenance - widow sole beneficiary - whether plaintiff in de facto relationship with deceased at time of death - whether factors warranting application - claim on notional estate
Legislation Cited:	Family Provision Act 1982 Interpretation Act 1987 Succession Act 2006
Cases Cited:	Andrew v Andrew [2012] NSWCA 308 Brown v Faggoter [1998] NSWCA 44 Burnett v Public Trustee [2005] NSWSC 1293 Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported) Cetojevic v Cetojevic [2007] NSWCA 33 Churton v Christian (1988) 13 NSWLR 241 Commonwealth Bank of Australia v Munro [2011] NSWSC 128 Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557 Fazio v Fazio [2012] WASCA 72 Fulop Deceased, Re (1987) 8 NSWLR 679 HML v R [2008] HCA 16 Ho v Powell [2001] NSWCA 168 Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 Jones v Dunkel [1959] HCA 9; (1959) 101 CLR 298 Moore v Moore [2012] FAMCA 387 Payne v Parker (1976) 1 NSWLR 191 Romeo v Papalia [2012] NSWCA 221 RPS v R [2000] HCA 3 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Smith v Samuels [1976] 12 SASR 573 Spence v Demasi (1988) 8 MVR 1 Wade v Harding (1987) 11 NSWLR 551
Texts Cited:	Cross on Evidence 4th Aust ed (1991)
Category:	Principal judgment
Parties:	Plaintiff: Dee Margaret Morgan Defendant: Winifred Lorraine Bohm
Representation
- Counsel:	D Coulton (Plaintiff) J E Armfield (Defendant)
- Solicitors:	George Sten & Co (Plaintiff) Butlers Will Dispute Lawyers (Defendant)
File Number(s):	2011/00343731

JUDGMENT

1. This is an application under the Succession Act 2006 in respect of the estate of the late Anthony Francis Bohm who died on 29 October 2010. The deceased was survived by his wife who is the defendant in the proceedings and by the plaintiff who claims that she was living in a de facto relationship with the deceased at the time of his death.

Last Will of the Deceased

2. The deceased made his last will on 11 September 1981. The will appointed the defendant as executrix and she is the sole beneficiary under that will. The deceased was resident in New Zealand and the High Court of New Zealand granted probate of the will on 21 December 2010. There has been no application for resealing in New South Wales.

Assets in the Estate of the Deceased

3. As the deceased was domiciled in New Zealand at the date of his death the only property which would be the subject of an order for provision is any property situate in New South Wales. The deceased at the date of his death owned property jointly with his wife in Walter Street, Paddington. The property was owned by them as joint tenants and accordingly has passed by survivorship to the defendant, his wife. The deceased's share is potential notional estate. The property has an agreed value of $1,025,000.

4. The defendant's costs were estimated on a solicitor/client basis as $142,000. The case has gone for another two days beyond the estimated two days and accordingly the costs are likely to be higher. The plaintiff's costs for a two-day hearing were estimated on a solicitor/client basis in the sum of $110,000.

The Family History

5. The deceased was born in September 1939. He met the defendant in 1957 and they were married in November 1961. They had no children. In September 1962 they purchased a newsagency business and then in 1974 set up a business in New Zealand called Dimensions Interiors. Their main interests in respect to that business were property, antiques and fine furnishings. They both worked seven days a week running the business together until they retired in 2003 though from time to time they took holidays.

6. The plaintiff was born of Australian parents in Fiji in December 1946. She completed her secondary education at New England Girls School, Armidale, Australia and thereafter did business and secretarial studies and worked in the United Kingdom and Hong Kong as a secretary.

7. She married her husband Jonathon Morgan in the UK in 1972 and had two children born in 1974 and 1976. In 1980 the Plaintiff relocated to Australia and continued her work. She and her husband divorced in 1986. The plaintiff received in 1987 a sum of about $400,000 by way of property settlement from her former husband.

8. The deceased and the defendant on 24 November 1992 purchased the property at Walter Street Paddington as joint tenants. From time to time thereafter the deceased would come to Sydney and he met the plaintiff in September 1993. At that stage she was living in rental accommodation in Mosman with her 17 year-old son Giles.

9. Between 1993 and 1996 the deceased and the plaintiff stayed together when the deceased came to Australia from New Zealand. They would either be at the plaintiff's rented property in Mosman or at Paddington. They had a number of holidays together including one in South America.

10. In June 1996 the plaintiff moved to New Zealand and lived with the deceased at Richmond House Dunedin which was the deceased's family home. She lived there until 1999 and in this period the defendant, the deceased's wife, with whom he was still working in the business, moved out to a nearby house. After an argument between the plaintiff and deceased in October 1999 concerning whether the deceased would divorce his wife, the plaintiff returned to live in Australia. She maintained that thereafter she would see the deceased from time to time when he came to Australia including at her house at Moss Vale which she purchased in January 2005.

11. There is no doubt that over the ensuing years the deceased did spend some time with the plaintiff. However, this is contested on the evidence and is one of the factual matters to which I will turn later in this judgment.

12. After the plaintiff returned to Australia in October 1999 the deceased formed a number of relationships with other women including engaging the services of prostitutes. He met Lynley Deaker in late 2000 and their sexual relationship continued until 2010. In 2005 he commenced a sexual relationship with Lara Burgess which continued for sometime. In 2008 he commenced a sexual relationship with Linda Oliver.

13. According to the plaintiff she did not know of these relationships that the deceased was having with these women. On the defendant's part, however, the subject of the deceased's other sexual relationships was a matter of discussion between them from time to time. Because of various medical conditions the deceased's wife, the defendant, unfortunately was not able to have a sexual relationship with the deceased for most of the rest of the period until he died.

14. The deceased died on 29 October 2010 at the plaintiff's house at Moss Vale whilst he was engaged in mowing her lawns. He died from a heart attack.

15. The summons was filed just within time on 28 October 2011.

Eligibility

16. The plaintiff claims that she is an eligible person on two bases. The first is that from June 1996 until October 1999 she was wholly or partly dependent upon the deceased and was a member of his household. The defendant concedes that the plaintiff was a member of his household in this period and the evidence would seem to suggest that for most of the time the plaintiff was partly dependent upon the deceased for accommodation, the cost of cars, living expenses, entertainment and holidays. It is clear that the plaintiff is at least in this respect an eligible person.

17. However the plaintiff suggests that she also is an eligible person as she submits that she was living with the deceased in a de facto relationship with the deceased at the date of his death.

De facto relationship at date of death

18. I turn to the claim that the plaintiff was living with the deceased as his de facto partner at the date of the deceased's death.

19. Under s 57 of the Succession Act eligible persons are defined as:

"57 Eligible persons

(cf FPA 6 (1), definition of "eligible person")

(1) The following are eligible persons who may apply to the Court for a family provision order in respect of the estate of a deceased person:

(a) a person who was the wife or husband of the deceased person at the time of the deceased person's death,

(b) a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death,

(c) a child of the deceased person,

(d) a former wife or husband of the deceased person,

(e) a person:

(i) who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii) who is a grandchild of the deceased person or was, at that particular time or at any other time, a member of the household of which the deceased person was a member,

(f) a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death.

(2) In this section, a reference to a child of a deceased person includes, if the deceased person was in a de facto relationship, or a domestic relationship within the meaning of the Property (Relationships) Act 1984, at the time of death, a reference to the following:

(a) a child born as a result of sexual relations between the parties to the relationship,

(b) a child adopted by both parties,

(c) in the case of a de facto relationship between a man and a woman, a child of the woman of whom the man is the father or of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father (except where the presumption is rebutted),

(d) in the case of a de facto relationship between 2 women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996,

(e) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998)."

20. The definition of a de facto relationship itself appears in s 21C of the Interpretation Act 1987 and is in the following terms:

"21C References to de facto partners and de facto relationships

(1) Meaning of "de facto partner"

For the purposes of any Act or instrument, a person is the de facto partner of another person (whether of the same sex or a different sex) if:

(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010, or

(b) the person is in a de facto relationship with the other person.

(2) Meaning of "de facto relationship"

For the purposes of any Act or instrument, a person is in a de facto relationship with another person if:

(a) they have a relationship as a couple living together, and

(b) they are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

(3) Determination of "relationship as a couple"

In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of their common residence,

(c) whether a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.

(4) Meaning of "related by family"

For the purposes of subsection (2), 2 persons are related by family if:

(a) one is the child (including an adopted child) of the other, or

(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or

(c) they have a parent in common (including an adoptive parent of either or both of them).

(5) Subsection (4) applies:

(a) even if an adoption has been declared void or is of no effect, and

(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.

(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order."

21. The plaintiff did not suggest that she was living in a "close personal relationship" with the deceased. She brought her case on the basis of a de facto relationship.

22. I turn to a number of matters that are referred to in the definition, which can be taken into account in determining the question.

Duration of the relationship

23. The plaintiff's submission was that a sexual, intellectual and emotional relationship commenced in August 1993 until the deceased's death in October 2010 and that they lived in a de facto relationship in New Zealand from June 1996 to October 1999. She submitted that notwithstanding her return to Australia, it then continued up until the date of death. Although they never lived continually together in the one house again after October 1999, they went on holidays together, including overseas trips, they stayed in each others homes, they telephoned each other, and socialized with mutual friends as a couple. Prior to moving in with the deceased in Dunedin in June 1996, the plaintiff visited the deceased in New Zealand twice and holidayed with him in South America from 28 December 1995 to 17 January 1996. This is supported by immigration records for the plaintiff and the deceased.

24. The defendant's submission was that the deceased told her that he met the plaintiff in December 1994. The plaintiff gave evidence that she first met the deceased in Sydney in 1993. The evidence of the diary entry for 31 December 1993 provided by Elizabeth Hillerstrom supports the statement that the parties met towards the end of 1993.

25. The defendant submitted that the deceased's immigration, telephone and banking records showed that, after the plaintiff returned to Australia in October 1999, the contact between the deceased and the plaintiff was sporadic and not indicative of a continuing relationship.

Nature and extent of their common residence

26. This of course is an important question and there has been extensive analysis of both immigration records and expenditure records of the parties to demonstrate the lack of frequency in respect of this matter.

27. The defendant submitted that the only period during which the plaintiff and the deceased shared a common residence was whilst they lived together in Dunedin in the period June 1996 to October 1999. During the other periods when they stayed together each of them had a separate residence. Thus between the time that the plaintiff first met the deceased (irrespective of whether they met in August 1993 or December 1994) and June 1996, the plaintiff was living in rented accommodation at Awaba Street, Mosman and the deceased was living either at the property at Paddington or in Dunedin. During the period October 1999 - 2004 the plaintiff was living in Sydney and thereafter until the time of the deceased's death in 2010 at her home in Moss Vale. During this period the deceased was living in either Dunedin or Paddington. The defendant submitted that the occasions they spent together should be regarded as visits or holidays. There was no common residence during these periods.

28. The plaintiff accepted that the amount of time spent together between 1999 and 2004 was limited, approximately four times per annum and two weeks at a time. However, the plaintiff submitted that between the deceased's visits, they spoke regularly on the phone.

29. The plaintiff stated that during the period 1995 to 2008 she had visited the deceased in New Zealand on numerous occasions and stayed with him for weeks at a time. This is something of an exaggeration. Other than a visit which lasted two months in 1995 and the period between June 1996 and October 1999 when the plaintiff and the deceased were living together in New Zealand, there were only two visits of relatively short duration. After the plaintiff returned to Australia in October 1999, she visited the deceased New Zealand in April 2000 for nine days and in July 2005 for four days.

30. Immigration records show that the deceased visited Australia five times in 2000, once in 2001, at no time in 2002, twice in 2003 and three times in 2004 for a total of 136 days, an average of two trips per year, 12 days per visit. She stated that during these visits they either resided together in his Paddington house or in her rented accommodation in Mosman.

31. It should be noted that the deceased did not visit Australia between 20 August 2001 and 1 November 2003, a gap of approximately two years and two months. The plaintiff submitted that the main reason why the deceased did not visit her between August 2001 and November 2003 was that the plaintiff was having serious heart operative procedures and was unfit and unwell to travel. The deceased did suffer a myocardial infarct in March 2002 and underwent cardiac bypass surgery in May 2002, and was admitted for surgery a further 10 times before he died in October 2010.

32. The defendant submits that there is no direct evidence to support the submission by the plaintiff that the main reason the deceased did not visit the plaintiff was ill health. However, the defendant had been visiting Australia regularly prior to 2002 and from late 2003 onwards which suggests that the reason for his failure to visit Australia in 2002 was due to health issues.

33. The plaintiff submits that the facts show the plaintiff and the deceased continued visiting and communicating with each other, as well as sharing holidays, from November 2003 until the deceased's death in October 2010.

34. Between 2008 and the deceased's death, the plaintiff stated that the deceased spent approximately six months of the year residing with her in Australia, usually at her property in the Southern Highlands. This is not borne out by the deceased's immigration or financial records. The plaintiff submits that she did not keep a record of the deceased's visits to Sydney. However, she submits that on each occasion he visited, he spent time with the plaintiff and that his trips were at regular intervals.

35. In 2008, the deceased spent 16 weeks in Australia, in 2009, seven and a half weeks, and in 2010, 13 weeks. In 2009, the financial records of both the plaintiff and the deceased indicate they were in different places to each other for approximately 48 days of the 53 days the deceased was in Australia, and in 2010 there was four weeks out of the 13 weeks that they were in different locations. However, the phone records of the deceased do indicate that he was in frequent contact in the last few years of his life with the plaintiff, making a total of 65 calls to the plaintiff, either from New Zealand or Paddington in 2008, 16 calls in 2009 and 33 calls in 2010. Many of these calls were quite lengthy, up to three hours on one occasion, and frequently more than an hour in duration.

36. The plaintiff submitted that the plaintiff and the deceased throughout the period of the relationship either stayed in each other's homes, hotels or friends' houses and that the deceased and the plaintiff regularly visited each other and holidayed together. She gave evidence that she left toiletries in the bathroom and clothing in a wardrobe at the Paddington house. After she purchased her home in the Southern Highlands in 2005 she only took an overnight bag if she stayed with the deceased in Paddington.

37. The defendant gave evidence that during the period from 2005 to 2010 she usually went to the Paddington property a few weeks after the deceased had been there and at no time did she see any belongings of any other person other than herself and the deceased.

38. There was, from time to time, use of the Paddington property by the deceased and the plaintiff and this raised a question which was much debated on the evidence as to whether or not the plaintiff had keys to the Paddington residence and had her personal effects at that property. According to the plaintiff, the deceased made a copy of his set of keys available to her. It appears that the deceased's original set of keys was returned by the plaintiff to his widow in New Zealand at her request on 4 November 2010. The keys were despatched at 11.24am. Shortly before this at 10.55am on the same day, the plaintiff paid Alpine Locksmiths the sum of $27.50 to have some keys cut. Alpine Locksmiths is a locksmiths in the Southern Highlands. Both sets of keys were tendered in evidence. The original set which were returned to the defendant in New Zealand are Exhibit 6 and are well worn and obviously have been used extensively. The copy of these keys which the plaintiff claims has been given to her by the deceased are clearly brand new and one of the keys in the set is stamped "Alpine Locksmiths".

39. The plaintiff alleged that the keys were cut not on that occasion but at some other time a lot earlier when she was given the keys although she did not specify a particular time. Her only explanation for the payment to Alpine Locksmiths on 4 November 2010 was that she thought she had some keys for her own house cut there.

40. All this has to be seen in the context of allegations of some discussions shortly after the deceased died when it was suggested to the plaintiff that she ought to get some keys cut and place some possessions in Paddington.

41. In her affidavit, Geraldine Turner, a friend of both the plaintiff and the deceased, gave evidence of a conversation that took place at the plaintiff's home in the evening of the day of the deceased's death. She stated that Sue Campbell, another friend of the plaintiff's, in the presence of the plaintiff said words to the effect that: "it would be wise if Dee got the keys of Tony's Paddington house duplicated quickly. Dee should go to the Paddington house and place personal items in the bathroom and underwear in the bedroom drawers as protection."

42. Sue Campbell, in her affidavit and under cross-examination, denies that any such conversation or discussion took place regarding duplicating keys to the Paddington house or placing clothing in the house. Under cross-examination, Ms Turner said:

"Q. Where do you say this conversation took place?

A. At Dee's house.

Q. Well, Dee was in bed, wasn't she

A. She may have been no. She lay down. She got up. She lay down. She got up. I cannot be sure whether Dee was present when Sue said this or whether she was lying down. But Sue absolutely said it. You don't forget those things."

43. This is of course critically different to her evidence in chief. It means that the comment may have no more status than some gossip amongst friends at the time. There is no evidence which proves that this conversation came to the attention of the plaintiff.

44. I am thus left with the facts set out in par 38 above and the plaintiff's denial. It is also to be noted that the plaintiff did present her case on the basis of her affidavit evidence that she had keys to the Paddington property. The evidence she gave in cross examination about when she received the keys was as follows:

"Q. Is this not the position; that what you did was that you had four keys produced by the locksmith on that day?

A. I had house keys. My house keys.

Q. Can I suggest to you that they were the keys to the deceased's home at Paddington?

A. No, they weren't. I already had a set of keys of his. He had some cut earlier in the year."

45. Mr Wooll, the locksmith, gave evidence that the charge for cutting 4 keys similar to those of the deceased was $27.00 or $27.50. Mr Wooll further stated under cross-examination that the two sets of keys, Exhibits 5 and 6, were the same:

"Q. Do you say the pink and the blue sets of keys on the pink and the blue are the same or not? Have a look please?

A. That one is. That one is. Yep, they look like, yeah, they are a set of keys that have been duplicated off there, by the looks of it."

46. The defendant submitted that the only inference available was that the plaintiff deliberately had the keys cut in order to fabricate evidence to support her claim that the deceased gave her keys to his Paddington property and that the only conceivable reason for doing this was to bolster her claim to be the deceased's de facto wife at the date of his death.

47. It would seem to be too much of a coincidence that the fact that the plaintiff paid Alpine Locksmiths the same amount, $27.50, as the cost of copies of the four keys for the Paddington house 29 minutes before she posted the deceased's set of keys back to the defendant, not to reach a conclusion, on the balance of probabilities, that the plaintiff did have a copy of the deceased's Paddington keys made on the day she returned the originals to the defendant. Accordingly I do not accept that she received them well before the deceased's death.

48. The plaintiff stated that the deceased would mostly stay with her in the Southern Highlands when he was in Sydney. However, the deceased's phone and financial records indicate that when the deceased came to Australia, the majority of his time was spent staying in Paddington. The plaintiff submits that the inferences the defendant wants the court to draw from the financial and phone records is not correct and ignores the large body of credible evidence given by witnesses on behalf of the plaintiff as to the extent of the integration of the deceased's life with that of the plaintiff. The plaintiff submits that the depth and breadth of a 17-year relationship cannot be reduced to a series of limited documentary records.

49. Although the financial and phone records of the deceased cannot be used to definitively show the exact amount of contact between the plaintiff and the deceased, they do suggest that the extent of any common residence after October 1999 when the deceased was in Australia was limited.

Whether sexual relationship existed

50. There was no dispute between the parties that a sexual relationship existed between the plaintiff and the deceased until the deceased's death in 2010.

51. The defendant also submitted that the significance of the existence of a sexual relationship, in the sense that it is an indicia of a committed relationship, was almost totally eradicated by the fact that the deceased had many sexual relationships with other women.

52. It is clear that a sexual relationship existed between the plaintiff and the deceased from prior to 1996 up until the date of the deceased's death. It was not however a monogamous relationship, although the plaintiff believed that it was until the stage when these proceedings were commenced. Plainly the deceased had numerous other relationships during the course of the alleged de facto relationship.

Degree of financial dependence or interdependence and any arrangements for financial support between the parties

53. The plaintiff submitted that she was financially dependent on the deceased whilst living in New Zealand. After her return to Australia she submitted that, although they did not share bank accounts, the plaintiff was partly dependent upon the deceased for paying for meals, and holidays. She also submitted that the deceased had agreed to buy a house in the Southern Highlands large enough for them both to live in, prior to his death.

54. The defendant's submission was that the plaintiff worked throughout the period of the relationship and only ceased working in January 2011. Analysis of the plaintiff's banking records during a holiday with the deceased in 2010 allowed an inference to be drawn that the plaintiff and the deceased were sharing expenses.

55. The financial records of the deceased showed that the plaintiff paid a total $4,317.00 into the joint bank account of the deceased and the defendant between September 1995 and March 1996, which was her contribution to the South America holiday that the plaintiff and deceased had taken together at the end of 1995.

56. The plaintiff and the deceased travelled together to the United Kingdom and Europe in 1998. They each paid their own airfares and shared expenses. After the plaintiff returned to Australia in 1999, the plaintiff and the defendant continued to share holidays together from the end of 2004 onwards, including a trip to Fiji in 2005, Armidale in 2007 and the Great Ocean Road in 2008. Their last holiday together was in August 2010 when they travelled to the Central West area of New South Wales, visiting Bathurst, Mudgee and Orange.

57. The plaintiff gave evidence that the deceased paid for all the expenses of the holidays within Australia, including meals, accommodation and petrol. It would appear from the financial records of the plaintiff, however, that she did contribute to expenses.

58. There certainly was financial dependence in the period from 1996 to 1999. But thereafter each party's finances were kept quite separate and there were no arrangements for financial support after 1999. There are a number of times when the parties went on some holidays together or did some small amount of travelling and there was then sharing of expenses.

Ownership, use and acquisition of property

59. The parties did not purchase any property together. The plaintiff initially had her rental property at Mosman and later acquired her house at Moss Vale. There was no jointly owned property at any time during the relationship.

60. The plaintiff gave evidence that she and the deceased had discussed him buying a property in the Southern Highlands for them both to live in. She stated that they had begun looking for houses in the six months before the deceased's death. A number of witnesses for the plaintiff gave evidence of the deceased telling them that he was looking to buy property in the Southern Highlands. However, no property was ever purchased.

61. The mutual use of their separate properties has been discussed above in relation to the nature and extent of their common residence.

The degree of mutual commitment to a shared life

62. The plaintiff's submissions were that she committed herself to the deceased and that he did not want her to return to Australia in 1999 but they would remain in a relationship. It was submitted that the fact that the deceased had relationships with other women did not detract from the veracity of the plaintiff's evidence as to the relationship. The plaintiff was unaware of any other relationships until the affidavits of the defendant were served in these proceedings. The deceased kept the relationship with the plaintiff on foot up until his death and held out to the plaintiff and her friends that he and the plaintiff were a couple.

63. The defendant's submission was that from the time the plaintiff returned to Australia in October 1999, there was no mutual commitment to a shared life. Whatever may have been the nature of the relationship whilst the parties lived together in Dunedin in the period 1996 - 1999, thereafter it changed to one of friendship, albeit with a continuing sexual relationship and visits.

64. The defendant submitted that the following matters pointed to the absence of a mutual commitment to a shared life:

(1) The parties separated because the plaintiff wanted the deceased to divorce the defendant, marry the plaintiff and the deceased refused to do so. This was supported by his statements to various witnesses.

(2) The plaintiff admitted in cross-examination that in 1999 she felt it was time the deceased made a commitment to her and that she was not prepared to move back to New Zealand permanently. She also stated that she did not want to get married.

(3) There were several prolonged periods in which the deceased did not visit Australia or did not visit the Southern Highlands when he was in Australia and therefore did not have direct contact with the plaintiff.

(4) The plaintiff only visited the deceased on two occasions in New Zealand after October 1999.

(5) The deceased told the plaintiff that he was no longer in a relationship with her. Lynley Deaker gave evidence that he told the deceased in her presence in January 2001 that he was in a relationship with Ms Deaker. Ms Deaker also gave evidence that in March 2002, the plaintiff telephoned the deceased and told him she was concerned and upset that he had not told her about his heart attack. The deceased told the plaintiff that it had nothing to do with her and he was not in a relationship with her.

(6) The deceased had sexual relationships with other women and with sex workers. Lynley Deaker and Lara Burgess gave evidence that they had a sexual relationship with the deceased. The deceased used the services of sex workers over the period 1996 to 2010 and was also using sex workers during the period the plaintiff lived with the deceased in New Zealand. This was supported by telephone records.

(7) The deceased told other people, including women he had a sexual relationship with, that he had many sex partners. This was supported by the evidence of Lynley Deaker, Lara Burgess and Lois Kinraid.

(8) The evidence of the plaintiff and her friends demonstrated large gaps of time between when they saw the deceased.

(9) The plaintiff attempted to bolster her case by suggesting that the deceased gave her keys to the Paddington property. The only inference available to be drawn was that the plaintiff deliberately had keys cut in order to fabricate evidence to support her claim that the deceased gave her keys to his Paddington residence.

65. The plaintiff submitted that the deceased's conduct in not disclosing his other sexual partners to the plaintiff was consistent with the defendant protecting and trying to preserve the relationship. It was submitted that the conduct of the deceased visiting the plaintiff soon and regularly after she left Dunedin in 1999 is consistent with the deceased wanting to maintain a relationship with the plaintiff. The plaintiff was not seeking marriage but for the deceased to live with her in Australia. It was not disputed by the defendant that the deceased enjoyed living in Australia and the Southern Highlands.

66. So far as the plaintiff was concerned, I accept she maintained a monogamous relationship with the deceased after 1999. To that extent, there was a commitment and there is some evidence from a number of witnesses of the plaintiff and the deceased being seen out socializing on his visits to Australia. However, the extent of the commitment on the deceased's part is quite different and I have addressed above the extent of any common residence.

Care and support of children

67. The parties had no children between them although the plaintiff had children from her first marriage. According to the plaintiff, the deceased had a respectful and caring relationship with her children. He was included in family occasions such as Christmas and birthdays and he helped her sons move accommodation.

Performance of household duties

68. The plaintiff submitted that there was evidence from witnesses that the plaintiff and deceased entertained as a couple, and that when they lived in the same house they carried out domestic duties for and on behalf of each other, including shopping. The plaintiff submitted she washed the deceased clothes from time to time. The deceased died while mowing the lawns of the plaintiff's house in the Southern Highlands.

69. The defendant submitted that the deceased left washing for her at the Paddington house and that she attended to the washing, ironing and housekeeping. While the plaintiff did the cooking, washing, shopping and cleaning for herself and the deceased during the period they lived together in 1996 to 1999, they ceased to share the performance of household duties of any significance after 1999.

70. There is no doubt household duties were performed by both parties when they in fact did spend time together for various periods over the years after the plaintiff returned to Australia. Apparently the plaintiff was a good cook.

Reputation and public aspects of the relationship

71. The plaintiff's submission was that the plaintiff and the deceased went to concerts, dinners and social functions with each other as a couple. The witnesses who gave evidence on behalf of the plaintiff had attested to the perception that the plaintiff and the deceased were a couple and that the deceased was going to live together with the plaintiff in the Southern Highlands. It was submitted on behalf of the plaintiff that many of the witnesses had become very good friends of the deceased and that their evidence should be accepted by the Court. It was further submitted that they were all accomplished women in their fifties and sixties, who would not exaggerate and fabricate stories to the Court about their perception of the relationship.

72. The defendant submits that the plaintiff and the deceased went out together when they saw each other after the end of the cohabitation in 1999 but there was no evidence that the deceased ever took any steps to purchase a property and that the plaintiff accepted that the deceased was a procrastinator.

73. The defendant's submission was that there were significant gaps in the evidence given by the plaintiff's witnesses as to when they saw the deceased after 1999. It appears that apart from one occasion, the plaintiff never held herself out to immigration or social welfare authorities that she was in a de facto relationship.

74. There were many witnesses called both by the plaintiff and the defendant who dealt with the parties' relationship after 1999. Shirley Elizabeth McMillan who resides now in the United Kingdom was a chartered accountant and was employed several days a week in the deceased's business. She gave evidence of conversations with the deceased when the deceased indicated that he had moved apart from his wife Win and was now involved with the plaintiff Dee Morgan. She also reported conversations with the deceased in October 1999 when he said that his relationship with Dee was over and that she had returned to Sydney. On inquiring as to why this happened the deceased said that "Dee gave me an ultimatum to divorce Win or she would return to Sydney. She also hated being in Dunedin". She also gave evidence about what happened with Dee's mail immediately after this period when the deceased would simply mark it "return to sender or died". Ms McMillan seemed to be a straightforward witness and I propose to accept her evidence.

75. Lois Elizabeth Kinraid was the deceased's sister and had a close relationship with him throughout his life.

76. Mrs Kinraid was quite angry at her brother for taking in the plaintiff to the exclusion of his wife. The deceased tried to give excuses for his actions. She also recalled in October 1999 being told that Dee had returned to Sydney and the relationship was over. She also said that deceased said that the reason was that he wouldn't divorce Win and marry her. Some years later, after an approach by Dee to the deceased he reported to his sister that he would be seeing her but just wanted to be a friend and not start a new relationship with her. She also reported on a conversation with the deceased in 2009 when the deceased complained about the plaintiff trying to get him to buy her an $8000 bracelet. I am prepared to accept this evidence.

77. Glenys Anne Scandrett was a friend of the deceased and his wife and worked in their business for three years from 1977 until 1979. She also became quite angry with the deceased about his separating from his wife in 1996. She also reported conversations with the deceased in 1999 in which he indicated that he had ended his relationship with the plaintiff. I accept this evidence.

78. Margaret Joan Linwood was the housekeeper working at the deceased's home at Richmond House. She also reported on conversations with the deceased in June 1996 in which he made excuses. Thereafter the plaintiff came to move into the New Zealand property. When she came to work in late September 1999 she saw packed boxes with the plaintiff's name on them and was told by the deceased that the plaintiff and he had ended their relationship, she wanted him to divorce his wife and he had refused. He also took care to tell her that if the plaintiff rang she was not to mention anything about his health problems to the plaintiff because it was none of her business. She also reported on conversations by the deceased reiterating the argument about the request to buy an $8,000 bracelet. I accept the evidence.

79. Lynley Jane Deaker gave evidence of the relationship which she had with the deceased after she met him a bar in Dunedin in late 2000. She commenced a sexual relationship with the deceased which continued until 2010. She was an academic. Apparently she used to spend nights with the deceased at Richmond House. The deceased would also visit and stay over at her home. It seems that they would go on holidays occasionally together and he would assist her with maintenance on her properties. They had interests in tramping and other outdoor activities.

80. It is to be appreciated that, from 1999 on, the defendant would not spend time in the evenings at Richmond House but would leave so that the deceased could have his girlfriends at that house. The defendant would go to the house next door. Occasionally Ms Deaker would talk to the deceased when he was in Sydney and she recalled in 2010 that the deceased had said that he visited the plaintiff and took her out to dinner. On inquiring about it the deceased said "we just went out together as friends. I want to keep the peace and be friendly with Dee. I don't want to dismiss people especially at this latter stage of my life".

81. I am prepared to accept this evidence but it should be appreciated that, as his wife described, the deceased was a very sexually active man and he had numerous women in relationships at the same time. One must therefore regard what he reported to other women about other relationships with a degree of scepticism. No doubt what was said was intended to suit the listener.

82. Lara Jane Burgess was another lady with whom the deceased had a sexual relationship. They met in 2004 and started a sexual relationship in 2005. This continued until she moved to Brisbane in December 2007 when she terminated the relationship with the deceased. Lara Burgess knew of course about his marriage and his relationship with Lynley Deaker and Marianne Shennon. She reported on a conversation in 2004 where the deceased described the relationship with the plaintiff as a major disaster that ended five years ago and that she wanted him to marry her but he refused.

83. Lara Burgess was a lot younger than the deceased and she had two boys for whom she was responsible. These were some of the reasons why she ended her relationship with the deceased. I accept her evidence and once again with the same cautions that I have referred to earlier.

84. Sharyn Jane Minahan gave evidence for the plaintiff and said she had known the plaintiff since about 1994. She first met the deceased when he and the plaintiff visited Argentina in December 1995. She was Charge d'Affaires of the Australian Embassy in Argentina at the time. She gave evidence of the plaintiff coming to stay with her in her Canberra home in mid-1996 and several years later. The plaintiff and the deceased shared a bedroom and were affectionate to each other. She also visited them at the Walter Street Paddington property between 1996 and 2000. She gave evidence of two occasions, one being a lunch which was the first time she went to the house and later, in the evening, at a drinks party.

85. She also gave evidence of an occasion on 14 August 2010 when the deceased and the plaintiff came to her house for lunch. They arrived at 1.00pm and left about 5.00pm. There was some discussion about the trip which the plaintiff and the deceased had had to Bathurst, Orange and Mudgee together and that they had stayed at the plaintiff's house in the Southern Highlands and also stayed at Paddington the night before the lunch.

86. She reported on a statement by the deceased that he was looking to buy a large family home in the Southern Highlands because the plaintiff's house was too small. She also gave evidence that they appeared to behave as a couple and were affectionate to each other. I accept this evidence.

87. Robyn Elizabeth Hall was a friend of the plaintiff, knowing her since 2005. Apparently the plaintiff lived in a room at her house for nine months prior to the plaintiff's ceasing her occupation in September 2006. She noticed some telephone calls from the deceased to the plaintiff at her home phone once a week which would last 20 minutes at a time. She first met him in March 2006. She reported that they would go out to lunch or dinner together and often Dee did not return to her house that evening. She also reported a conversation with the deceased about looking to buy a house in the Southern Highlands.

88. Unfortunately Ms Hall was a difficult witness and she tried to embroider her story and add extra occasions. On a number of occasions she refused to answer the questions. Notwithstanding this I am prepared to accept her evidence about the reported conversation with the deceased. This conversation, like other occurrences of it, was no doubt aimed by the deceased at a targeted audience and whether it truly reflected his intention or a joint intention is quite another question.

89. Sue Burt gave evidence that she knew the plaintiff from about 1986 and that she first met the deceased in 1993 in Sydney. She gave evidence of having seen the plaintiff and the deceased socially in Sydney prior to 1996. She also visited them in New Zealand in 1996. She also reported on seeing the plaintiff and the deceased at dinners and parties and other social occasions from 1999 until the deceased's death in October 2010. She also reported on an occasion when the deceased and the plaintiff came to her place for dinner in Randwick on 17 October 2010 shortly before the deceased's death. She reported on a conversation by the deceased to this effect: "It's ridiculous travelling to and from New Zealand. My house (meaning Richmond House in Dunedin) is too big and needs a lot of work and money spent on it. I'm going to sell it and buy a house in the Southern Highlands. I've seen a lot of properties that are within the price range and very good. I love living with Dee in her house, but we need a bigger house. Dee can then rent out her house."

90. Ms Burt was very emotional about her evidence and was a very special friend of the plaintiff. She made assumptions in her affidavit evidence such as the fact that the deceased would see the plaintiff every time he came to Sydney. She was in no position to know when he did come. However, notwithstanding this I think it is likely that the deceased did say the words attributed to him which I have set out above.

91. I have already referred to Geraldine Turner who gave evidence in respect of the question of the keys to the Paddington house. She met the plaintiff in 2006 and the deceased not long thereafter. She reported that the plaintiff would complain to her saying "Tony will not commit to me or divorce his wife. I wish I could I change his mind and that he would move to Australia from New Zealand and start a life with me". She also said on some occasions "Tony would come to Australia for a few weeks, stay in his house in Paddington and not visit me at all. He would call me and say that he had been in Sydney but was leaving that day for Dunedin and could not make it down for a visit".

92. Not long after their trip to central western New South Wales, at a stage shortly before the deceased's death, she reported: "I remember clearly sitting together with the deceased and the plaintiff at Gilberts restaurant at Mittagong. Dee had told me that this time it was going to be different between them. Dee had occasion to go to the bathroom. I said to Tony 'I'm glad you are seeing each other again as Dee had missed you.' Tony said 'Really' which I thought was a rather cavalier response. I then asked Tony 'Are you thinking of buying a house in the Highlands?'. Tony said 'No!' It was an emphatic response. Not holding back, I then said 'But you are moving here?' Tony said 'No'".

93. There is no reason not to accept this evidence. It shows the changeable nature of the deceased's intentions.

94. Maryann Winterflood gave some evidence that she met the deceased on two occasions, one of them being about three or four years ago at the plaintiff's house. She recalled meeting the plaintiff at the front door of the house before she met the deceased and was warned by the plaintiff not to ask him if he was going to buy a house in the Southern Highlands as he would get quite angry. Apparently the plaintiff also reported he wouldn't come to live there because he was too settled in New Zealand and had more faith in his doctor there who looked after his heart condition.

95. Kim Kathleen Rock was called by the defendant and she was a next-door neighbour of the deceased living next to his Walter Street Paddington property. She and her husband purchased her property in December 2006. She first met the deceased in April 2007. She reported on a discussion she had in late October 2010 in these terms: "Darren and I had drinks with Tony who was alone at his place later on the same day that we had met Dee and her dog. I recall saying to Tony words to the effect of: 'How do you know Dee'. Tony said words to the effect of 'I had been in a relationship with Dee in New Zealand many years ago but it did not work out'. I teasingly said words to the effect of 'You could start a new relationship with Dee. Tony said words to the effect of 'It did not work before and it will never work again. Dee is just a friend. I could never break up my marriage with Win to be with Dee. I would never do that to Win again. We have been married for a very long time.'"

96. She also noted the plaintiff at Walter Street only once but frequently saw the deceased there without her. I accept this evidence.

97. Dianne Mary Erhardt is a Detective Senior Constable who met the plaintiff in late 1992. In October 1996 the plaintiff and the deceased travelled from New Zealand to Broken Hill to come to her wedding as she had been a close friend of the plaintiff. She also recalls visiting them at the deceased's house in Paddington. She also saw the deceased prior to his death in 2010 and overheard discussions between the deceased and the plaintiff planning trips away including a trip which they did take to the central west of New South Wales.

98. Elizabeth Hillerstrom was an old school friend of the plaintiff and was a godmother to her youngest son Giles. She first met the deceased on New Year's Eve 1993. She provided copies of a diary entry for 31 December 1993 indicating "Dee & man" were attending. She reports having many dinners and lunches together with the plaintiff and the deceased and going to the theatre together. She gave evidence of specific occasions meeting the plaintiff and the deceased on 4 and 13 January 1999 and provided copies of diary entries showing social engagements with the plaintiff and the deceased.

99. Sue Campbell first met both the plaintiff and the deceased at Elizabeth Hillerstrom's 50th birthday celebration in about October 1997. She gave evidence that she didn't get to know the deceased until after the plaintiff moved to the Southern Highlands in 2006. She reported that the deceased and the plaintiff holidayed with her at her rented beach house in North Avoca over the New Year period in 2008/2009 and that she saw the plaintiff and the deceased on a number of other social occasions between 2005 and 2008 although she couldn't remember specific dates.

100. She also reported that on a couple of occasions she gave the deceased a lift back to Sydney from the Southern Highlands. She gave evidence that on one occasion during the car trip, she had a conversation with the deceased about real estate in the Southern Highlands and that the deceased was considering buying a house in Burradoo.

101. She reported that on the day of the deceased's death she received a phone call from the plaintiff informing her and requesting that she come to the hospital which she did. She then returned to the plaintiff's home with the plaintiff and stayed until the evening. As referred to in par 40 above, Mrs Campbell denied that she had raised the question of keys to the deceased's Paddington house on that day or in any conversation or that she had said that it would "be wise if Dee got the keys of Tony's Paddington house duplicated quickly". She also said she did not hear any discussions as to keys or that the plaintiff should place personal items at the Paddington house.

102. Nina Champion was a friend of the plaintiff's and first met the deceased in 2006. She gave evidence that she worked with the deceased and the plaintiff on a charity event in October 2010 and that the deceased told her he was thinking of moving permanently to Australia. I accept this evidence.

103. Christine Jack met the plaintiff in 2010 and was an acquaintance at the time of the deceased's death but has since become a friend in the last two years. She never met the deceased. She gave evidence of a conversation she had with Geraldine Turner over lunch on the day of the deceased's death. During the lunch, Ms Turner received a phone call informing her that the deceased had died while mowing the plaintiff's lawn. She reported that Ms Turner had said to her that: "This will be particularly hard for Dee because, although she and Tony have been together a long time, they had just agreed to live permanently together in the Southern Highlands, so she was looking forward to that." I accept this evidence.

104. Lucinda Wright was a friend of the plaintiff and had known her since they were at boarding school together in the late 1960's. They have remained friends and in contact since that time. She was unable to recall when she first met the deceased but that it was at least once before the occasion of the plaintiff's 50th birthday party which the deceased hosted at his Paddington house in 1997. She also reported meeting the deceased at her home in Armidale in 2008 when he accompanied the plaintiff on a visit.

105. Annabel Barton was a friend of the defendant and the deceased in Dunedin. She gave evidence of a conversation she had with the deceased in Sydney in August 2010 and that the deceased said he had been down in the Southern Highlands to visit the plaintiff. She reported that he described the plaintiff as "a casual friend" and that he would offer to mow her lawn or take her out to dinner to thank her for the visit. I accept her evidence.

106. Nicole McKay was a friend of the plaintiff for the past 8 years. During that time she met the deceased between eight and a dozen times on social occasions. She gave evidence that on the day of the deceased's death she attended the plaintiff at the hospital and then went to the plaintiff's house and stayed until approximately 2pm. She then returned at approximately 7pm. During the time she was at the plaintiff's house on the day of the deceased's death, she could not recall who had visited only to say that a number of people had called in.

107. Anthony Wooll was a locksmith and the manager of Alpine Locksmiths Moss Vale. He gave evidence, as referred to in par 43 above, that the cost of cutting four keys similar to the deceased's Paddington house keys was approximately $27.00 or $27.50. The witness was shown Exhibit 5, the keys that the plaintiff said were given to her by the deceased and Exhibit 6, the keys which were returned to the defendant by the plaintiff in November 2010. He gave evidence that it appeared the keys in Exhibit 5 had been copied from those in Exhibit 6 and that one of the keys in Exhibit 5 was marked Alpine Locksmiths.

108. In my view the plaintiff was not living in a de facto relationship with the deceased at the date of his death. Their periods of contact were intermittent and on many occasions particularly towards the end of his life the deceased would come to Australia and not make contact with the plaintiff. Sometimes he would just ring and say he had been in Australia and was going back to New Zealand. It is also important that there was little intermingling of their financial affairs in this later period and there was no dependence by the plaintiff upon the deceased in matters financial.

Member of the household and partly dependent

109. I therefore turn to consider the matter on the basis that the plaintiff was a member of the deceased's household and partly dependent upon him between 1996 and 1999. In applications under the Family Provision Act 1982, the High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 has set out the two-stage approach that a court must take. These comments were equally applicable to claims under the Succession Act. At p 209 it said the following:

"The first question is, was the provision (if any) made for the applicant 'inadequate for [his or her] proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Ltd. The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."

110. However, as a result of Andrew v Andrew [2012] NSWCA 308 the situation is, somewhat different. In that case, Barrett JA said that the two stage approach adapted under the Family Provision Act still applied to claims under the Succession Act. Basten JA held that a two stage approach was not necessary. The President thought it was an analytical question of little consequence. In the circumstances of this uncertainty, I will consider it on both bases.

111. It was conceded by the defendant that during the period June 1996-October 1999 the plaintiff was a member of a household of which the deceased was a member and during that period she was partly dependant on him.

Factors warranting the making of the application

112. It is necessary under s 59 (1) of the Succession Act that the Court shall first determine whether there are factors warranting the making of the application. Courts have dealt with this expression on a number of occasions. In Re Fulop Deceased (1987) 8 NSWLR 679 at 681 McLelland J when considering that equivalent expression in the Family Provision Act described that expression in the following terms:

"Secondly, the subsection appears to be premised upon a distinction between 'factors which warrant the making of the application' on the one hand, and circumstances which would justify the making of an order granting the application, on the other; otherwise the subsection would be pointless. This means that in a particular case the Court might determine that there are 'factors which warrant the making of the application' within the meaning of the subsection, and yet go on to decide that the application should fail. Since the subsection applies only to certain classes of applicants, it suggests that those classes of applicants need to demonstrate some basis for their claims additional to that required of other classes. The difference between the two sets of classes of applicants, in broad terms, seems to be that the classes not affected by s 9(1) (lawful and de facto spouses and children) are as such generally regarded as natural objects of testamentary recognition by a deceased (of the Wills Probate and Administration Act 1898, s 61B), whereas the classes affected by s 9(1) (former spouses, and some time dependent grandchildren or household members) are as such not generally so regarded. This suggests that the 'factors' referred to in the subsection are factors which when added to facts which render the applicant an 'eligible person' give him or her status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased. That the subsection is directed at a plaintiff's status as applicant in some such sense as this perhaps finds some support in the statutory direction to the Court, in the event that it determines the preliminary question adversely to the plaintiff, not to go on to determine the application, but 'refuse to proceed with the determination of the application.'"

113. In Churton v Christian (1988) 13 NSWLR 241, the Court approved this statement. Priestley JA at page 252, after setting out and approving the statement, added:

"To this I would add that although the classes affected by s 9(1) are not necessarily generally regarded as natural objects of testamentary recognition, in some cases members of those classes may, when the circumstances of their relationship with the deceased are set out, immediately be seen to be persons who would be regarded by most observers as, in their particular circumstances, natural objects of testamentary recognition."

114. These principles have been applied at first instance for many years. There has been in recent times further attention to this matter in the Court of Appeal in the case of Brown v Faggoter [1998] NSWCA 44, a decision given on 13 November 1998, which is a decision of Sheller JA, Sheppard AJA and Fitzgerald AJA. Fitzgerald AJA, who seemed to suggest that an application might be warranted if the application has reasonable prospects of success gave the main judgment. This seems to be a somewhat different and perhaps easier test than that which the Court of Appeal approved in Churton v Christian. I will consider the matter on both bases, given that there may be some flux in the state of the law in this regard.

115. The plaintiff submitted that when the Court analyses all the facts of this matter it can hold that there are factors warranting the bringing of the application. There was no dispute that the plaintiff was in a de facto relationship with the deceased from June 1996 to October 1999, having moved from Australia to New Zealand to live with him, and this fact in itself, it was submitted, gave the plaintiff the status of a person who would generally be regarded as the object of testamentary recognition. In addition, the fact that the plaintiff had a very close and long relationship with the deceased from 1993 to his death on 29 October 2010, totalling approximately 17 years, regardless of any finding of a de facto relationship, would constitute a significant factor warranting the plaintiff's application.

116. The defendant submitted that the plaintiff was not a natural object of testamentary recognition of the deceased because:

(1) The period when the parties lived together was short - 3 years and 4 months;

(2) It ended 11 years prior to the deceased's death;

(3) After the parties ceased to live together the deceased entered into a number of sexual relationships with other women and sex workers;

(4) The deceased told the plaintiff that the relationship was over;

(5) There were long periods of time where the plaintiff and the deceased had no contact;

(6) There was no financial dependence by the plaintiff on the deceased post 1999. She had her own employment and purchased her own home in Moss Vale;

(7) The plaintiff and the deceased led separate lives post 1999. This is evidenced by the fact that the plaintiff only returned to visit the deceased in New Zealand twice after 1999, despite travelling overseas extensively (without the deceased) from 2000 to 2007. Further, the evidence as to the trips by the deceased to Australia post 1999, and in particular the evidence as to the times when he didn't visit the plaintiff and the gaps in contact between them;

(8) The contact which did exist post 1999, including holidays, attending social functions and a sexual aspect did not elevate the plaintiff to a natural object of testamentary recognition.

117. In support of the above submissions, the defendant cited Burnett v Public Trustee [2005] NSWSC 1293, where it was said by McLaughlin AsJ, at par 47-48:

"In considering whether there are factors warranting the making of the application, it seems to me to be relevant that the de facto relationship between the Plaintiff and the Deceased obtained for an extremely short duration, only 14 months, and that that relationship came to an end when the Plaintiff and her children departed Africa in February 1962, more than 42 years before the death of the Deceased. Throughout that period of 42 years the Plaintiff and the Deceased did not ever constitute a family unit. The Plaintiff contracted a marriage (albeit an asserted marriage of convenience) and the Deceased maintained a long-term relationship with Mrs Sperling. The relationship of the Plaintiff and the Deceased throughout that period appears to have been one of friendship. But for many years their respective careers resulted in each being away from Australia for protracted periods. After his retirement the Deceased lived in Mosman, a suburb of Sydney, whilst the Plaintiff was residing in Western Australia.

48 I am not satisfied that the Plaintiff has established that there are any factors that warrant the making of the present application. That being so, the Court, as required by section 9(1) of the Act, must 'refuse to proceed with the determination of the application". It follows, therefore, that the claim of the Plaintiff must be dismissed.'"

118. In this case, the plaintiff and the deceased did constitute a family unit for a little over three years. Although some years ago, it was of a reasonable duration. Although the deceased at one stage told the plaintiff that the relationship was over, his conduct after that point in time led the plaintiff to believe that there was still a continuous relationship of a lesser intensity than that which existed before. Importantly, it still continued as a sexual relationship and thus was more than just friendship. Given my findings about the plaintiff not being aware of the deceased's other relationships, he plainly let the plaintiff have this belief.

119. The evidence of the plaintiff's friends seeing them as a couple over the subsequent years adds strength to the existence of a continuing relationship. The gaps in their contact have to be taken into account in this exercise.

120. In my view, the nature of the relationship was such that I consider that there are factors warranting the making of the application.

Plaintiff's situation in life

121. The plaintiff is 65 years of age, single with two children who are not dependent upon her. She owns her own home at Moss Vale valued at $400,000. She has savings of about $132,000 in a superannuation fund and about $2,000 in her current account. She owns a 17 year-old Mercedes motor vehicle valued at about $4,000. She has liabilities mainly consisting of costs in respect of these proceedings of $110,000.

122. She worked part-time as a shop assistant until shortly before the trial. She has not been able to find employment again although she has been trying. Her income is thus dependant upon both English and the Australian pension which she receives of $410 per week. That pension is insufficient for her to meet her expenses and she is forced to draw on her superannuation fund withdrawing about $166.75 per week. All these funds are taken up with her expenses and she lives a very frugal lifestyle.

123. It is likely that she will exhaust her superannuation fund in 15 or so years given her life expectancy of 23 years.

124. The plaintiff is in good physical health but she has been suffering from depression, stress and panic attacks since the death of the deceased for which she is receiving treatment and wishes to receive counselling.

125. I have already adverted to the nature of the relationship between the plaintiff and the deceased. I turn to consider the situation in life of others who have a claim on the bounty of the deceased.

Situation in Life of the Defendant Winifred Lorraine Bohm

126. Winifred is 73 years of age, single, with no dependents. She has real estate in New Zealand valued at NZ$2,420,000, the Walter Street Paddington property is valued at $1,025,000, and savings in term deposits, amounting to $227,156. Her income, which is mainly from New Zealand government superannuation and term deposit interest amounts to $25,469 per annum after tax. Presently her personal expenses are $17-18,000 per annum. This figure did not include the rates, insurance, power, phone, repairs and maintenance for all of her New Zealand properties, which in the year ended 31 March 2012 amounts to $71,155. She has liabilities mainly consisting of costs in respect of these proceedings of $142,500.

127. It was submitted by the defendant that while she has not insignificant assets they are the product of the joint endeavours of the deceased and herself over a long marriage.

128. It is plain that the proceedings have caused the defendant stress and her health has deteriorated in these times. In November 2011 she was diagnosed with an irregular heartbeat and that was unable to be successfully treated. In April 2012 she developed heart failure but treatment was available. She has thyrotoxicosis and she is also being treated for a low white blood cell count. In August 2012 she had to be admitted to hospital after collapsing and hitting her head.

Relationship of the defendant and the deceased

129. The deceased and the defendant had a long marriage of some 50 years. There were two periods of the marriage, the first from 1961, when the marriage commenced until June 1996, when the plaintiff moved in with the deceased in Richmond House, and the second from October 1999 after the plaintiff had returned to Australia, until the deceased's death in 2010.

130. Due to medical issues, the defendant started experiencing pain during sexual relations from about 1990 and had surgery to try and correct the problem in 1996, which was unsuccessful.

131. In June 1996, the deceased and defendant purchased an apartment at Cargill Court about 5 minutes from Richmond House. During the period from July 1996 to October 1999, when the plaintiff resided with the deceased in Richmond House, the defendant was separated from the deceased and lived in the apartment at Cargill Court. However, the deceased and the defendant continued to run their business together seven days per week. In October 1999, after the plaintiff had returned to Australia, the defendant returned to live with the deceased in Richmond House and recommenced a sexual relationship with him. However, due to ongoing medical problems, the sexual side of their relationship deteriorated.

132. The defendant became aware that the deceased was using sex workers from about 1993 but the situation was not openly addressed between them until 2000. In 2000, the defendant and the deceased discussed the deceased's need for other sexual partners and agreed that he should have relationships with other women as the defendant was unable to fulfil the deceased's sexual needs. In 2001, the defendant moved back to the apartment at Cargill Court so that the deceased could bring other women to Richmond House.

133. The defendant gave evidence that she was aware of a number of relationships which the deceased had between 2001 and his death in 2010, including those with Lynley Deaker and Lara Burgess who gave evidence in these proceedings. She was also aware that the deceased had contact with the plaintiff when he was in Sydney and that they had holidayed together on a number of occasions after the plaintiff returned to Australia in 1999. However, the defendant and the deceased continued to work together in their business until they closed it in 2003 and continued to eat meals, socialise and combine their financial affairs until the deceased's death in 2010.

134. The defendant submitted that it was a fair inference that the deceased's estate was substantially amassed by their joint efforts. I accept this inference. The defendant also submitted that the deceased did not owe an obligation to the plaintiff. I do not accept this submission.

135. The plaintiff's submission was that the deceased and the defendant separated as man and wife at least from 2001, when the defendant recommenced living in a separate residence at Cargill Court, until the deceased's death. It was submitted that there was no common residence, no sexual relationship, no mutual commitment to a shared life and no holding out to the public they were a couple. Further, the Court could hold that the relationship between the defendant and the deceased was one of friendship and financial only, from 2001. In addition, it was submitted that the Court could also find that the marital relationship between the defendant and the deceased broke down from 1993 when the plaintiff and the deceased formed a relationship.

136. The defendant and the deceased worked in business together throughout their relationship and unfortunately due to the medical problems from which the defendant suffered they were not able to have a sexual relationship later in life. However, in my view their marriage relationship (apart from 1996 - 1999) continued in fact and law until the death of the deceased.

137. The defendant submitted that a Jones v Dunkel inference should be drawn as the plaintiff did not call either of her sons to give evidence. The so-called rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 permits the Court to draw an inference that the uncalled evidence would not have assisted the party who failed to call it and entitle the trier of fact to more readily draw any inference fairly to be drawn from other evidence: Cross on Evidence 4th Aust ed (1991), at [1215]; Romeo v Papalia [2012] NSWCA 221 at [121]. However the failure to call the witness cannot be used to fill gaps in the evidence: Romeo v Papalia.

138. Strictly speaking, as Hodgson JA (with whom Beazley JA agreed) pointed out in Ho v Powell [2001] NSWCA 168, Jones v Dunkel related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. His Honour said that in his opinion, a similar principle applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person's case (at [15] - [16]).

139. The rule is a specific application of the well-established principles that a party is expected, within reasonable limits, to produce at the trial all the evidence that is fairly available to him: Spence v Demasi (1988) 8 MVR 1 at 12. The principle does not extend to drawing an inference that the uncalled evidence would in fact have been damaging to the party not calling it: Moore v Moore [2012] FAMCA 387 per Strickland J at [84]. Similarly, in civil cases, the unexplained failure of a party to call witnesses is not treated as evidence of fear that it would expose an unfavourable fact, nor as an assertion of the non-existence of the fact not proved: HML v R [2008] HCA 16; Fazio v Fazio [2012] WASCA 72.

140. In relation to the plaintiff and her sons, the first question, in my view is: which party is expected to call them? The cases deal with this by asking: to which party is the witness available, or what "camp" is the witness in? See for example Commonwealth Bank of Australia v Munro [2011] NSWSC 128 at [44]; Payne v Parker (1976) 1 NSWLR 191 per Glass JA. The second question is whether the witness's evidence would elucidate a particular matter. The final question is whether that party could be fairly expected to call the witness, or whether there is a reason that properly explains their absence, other than that the witness would not assist that party's case.

141. Cox J summarised these questions in relation to a supporting witness (as opposed to a party not giving evidence) in Spence v Demasi, as follows:

"So far as a potential supporting witness is concerned, the court will first have to decide whether his absence should be regarded as telling against one party rather than the other - whether, in the nature of things, he should be put in a particular camp or simply seen as available equally to both sides. Even where that test is satisfied, an adverse inference cannot be drawn if there is an obvious or proved, and satisfactory, explanation for the failure to call the witness. That will depend upon the facts of the particular case."

142. In relation to the first matter, the significance of the inference depends on the closeness of the relationship of the absent witness with the party who did not call the witness: Cross on Evidence at [1215]; Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt1)(NSW) 557 at 582.

143. Once it is established that a witness is available to one of the parties, the tribunal of fact must be satisfied that he probably would have the relevant knowledge or there would be no basis for any adverse deduction from the failure to call the witness: Payne v Parker.

144. Finally, it is necessary to verify that the potential witness not only could shed light on the subject in dispute, but also would ordinarily be expected to do so: RPS v R [2000] HCA 3. In relation to reasons why a party might choose not to call a witness, without attracting a negative inference against them despite the witness being in their "camp" and being able to elucidate a matter, Bray CJ said in Smith v Samuels [1976] 12 SASR 573:

"For the unfavourable inference to be justified the witness not called must be available: it must be 'in the power' of the party to call him. He may be unavailable through absence or illness. He may be unavailable because he would not be a competent witness. In my view he may also be unavailable in the relevant sense, or at least no unfavourable inference should be drawn from his absence, when there are strong reasons for not calling him other than the falsehood of the story he might be expected to confirm, such as his hostility to the party or, I would say, jeopardy or grave prejudice to the witness himself...." (emphasis added)

145. The plaintiff gave evidence that both her sons knew about her relationship with deceased and had met him on several occasions, although her younger son had had more contact with the deceased than the older son. Her evidence was that both sons had visited the Paddington house from time to time when she and the deceased were both there. The plaintiff stated that her younger son, Giles, was at her home in the Southern Highlands with herself and the deceased the night before the deceased died and was particularly upset at what had occurred.

146. Under cross-examination, the plaintiff was asked if there was any reason why either of her sons could not have given evidence in these proceedings to which she responded there was no reason but that she didn't want either son to be involved. The plaintiff stated that Giles had offered to give evidence but that her older son Alex had a mental illness and that she did not discuss her relationship with the deceased with him.

147. In relation to the first question, whether the plaintiff's sons were available to the plaintiff, it seems that Giles was available but given that Alex has a mental illness, this raises the question of whether he would have been unavailable due to that condition. The second question is whether either son's evidence would have added anything further as to the nature and extent of the relationship between the plaintiff and the deceased. The final question is whether the plaintiff could reasonably be expected to have called her sons to give evidence and whether there is a reasonable explanation as to their absence other than that their evidence would not assist the plaintiff's case.

148. In answer to the first question, I find that Giles was available to give evidence for the plaintiff but in view of his mental illness, Alex was not. However, in answer to the second question, I am of the view that Giles wouldn't have any relevant knowledge given the nature of the relationship between the plaintiff and the deceased. From 1999 onwards when the plaintiff returned to Australia, the plaintiff and the deceased were living separately and apart. Therefore, in answer to the third question, there is a reasonable explanation as to their absence and I do not draw an inference against the plaintiff because of her failure to call her sons to give evidence.

Discussion

149. There was a close attachment between the plaintiff and the deceased. There was a strong relationship for three years, between 1996 and 1999 when they lived together in New Zealand and more limited contact over the next 11 years until the deceased's death in 2010.

150. The later contact between the deceased and the plaintiff bespoke of a relationship that was more than just old friends. They had a sexual relationship, they holidayed together and enjoyed each other's company. The deceased, when he was with the plaintiff, acted as though they were a couple when they socialised with others. Importantly, the nature of their contact by telephone indicates more than just simple friendship. The calls made by the deceased to the plaintiff were frequently quite lengthy.

151. It was the plaintiff's submission that she is of modest means and has no real capacity to earn money. The only other person with a claim on the deceased's bounty is his wife and her financial position is vastly more secure than that of the plaintiff. It was submitted that she should be afforded a significant order in her favour out of the notional estate of the deceased as the deceased and the plaintiff had a significant emotional, sexual and intellectual relationship from 1993 until his death. Further, it was submitted that he was part of the fabric of her social circle and her life and that the relationship between the plaintiff and the defendant was of such significance that in terms of the Act, it could be elevated to the same level as a de facto relationship.

152. The defendant correctly submitted that the only asset from which an order for provision could be satisfied was the deceased's interest as joint tenant in the Paddington property. The defendant conceded that there was a relevant property transaction which resulted in property being held by the defendant and full valuable consideration was not given. It was also conceded that the provisions of s 80(2)(c) and s 83(1)(a) of the Succession Act are satisfied.

153. I need to consider the appropriate questions in respect of the designation of the property as notional estate.

154. The relevant prescribed transaction under the Succession Act is the failure of the deceased to sever the joint tenancy. By the combined effect of s 76(2)(b) and (4) there will be a prescribed transaction if the deceased omits to sever the joint tenancy immediately before death and full valuable consideration in money or money's worth is not given for the omission of the deceased to do that act (s 76(4)).

155. In Wade v Harding (1987) 11 NSWLR 551 Mr Justice Young, as he then was, concluded on the facts of that case "what was forgone in not severing the joint tenancy was received by continuing to be a joint tenant". This conclusion appears to be because he formed the view that immediately before death the deceased had an equal chance with the joint tenant of benefiting by the jus accrescendi.

156. In Cameron v Hills (NSWSC, Needham J, 26 October 1989, unreported) described that approach in these terms:

"With great respect to his Honour, I find it difficult to see how a joint tenant, about to die immediately, can be said to have an equal chance of surviving the other joint tenant. The Court must look at the position the moment before death. Whatever may have been the facts in that case justifying the conclusion, there are no such facts in this case. Immediately before the death of this deceased there was no rational prospect of his surviving the defendant. Accordingly, in my opinion, no valuable consideration in money or money's worth was given for the omission of the deceased to sever the joint tenancy."

157. Needham J's approach has now been followed in the Court of Appeal (see Cetojevic v Cetojevic [2007] NSWCA 33).

158. Provided that a deceased has suffered some injury, had a medical problem or set in train some sequence of events as a result of which death ensues then, like Needham J, I would normally conclude that there was no rational prospect of the deceased surviving his co-tenant. In the present case the deceased was suffering from a serious illness, which was about to cause his death. In these circumstances I would conclude that no valuable consideration was given and thus there is a prescribed transaction and thus one half of the property can be designated as notional estate.

159. Section 87 of the Succession Act is in the following terms:

"The Court must not make a notional estate order unless it has considered the following:

(a) the importance of not interfering with reasonable expectations in relation to property,

(b) the substantial justice and merits involved in making or refusing to make the order,

(c) any other matter it considers relevant in the circumstances."

160. The defendant submitted that there are good discretionary reasons under s 87 to decline to make an order designating the deceased's interest in the Paddington property as notional estate, those reasons being that the defendant contributed approximately $150,000 towards the purchase of the property, she gave evidence that it is the only property she has in Australia and she wishes to spend 6 months of the year there and 6 months in New Zealand. Further, the plaintiff did not make any contribution to the acquisition of the deceased's property or to the welfare of the deceased. The plaintiff was not maintained by the deceased prior to his death. There was no obligation on the deceased to make any provision for the plaintiff. It is plain that the plaintiff did not contribute to the Paddington property as it was purchased by the deceased and his wife.

161. The defendant has sufficient other property in order the meet the order and she can, if she so decides, to retain the Paddington property for her own use.

162. In my view, the substantial justice and merits require the making of an order in favour of the plaintiff. There is no other matter I consider to be relevant in the circumstances.

163. The amount of any legacy should take account of the relationship between the deceased and his wife and the relationship between the deceased and the plaintiff. I note that there was no property claim by the plaintiff after the 1999 separation and the subsequent financial arrangements between them. Although the plaintiff owns her home outright, she only has a small amount of superannuation totalling $132,000. As I have mentioned, with her current expenses she is forced to withdraw $166.75 per week from her superannuation which will not last for long. She is living a very frugal lifestyle. Given her age and lack of success in finding a job over the last two years, I think it quite unlikely that she will be employed in the future.

164. Her main concern is to obtain a lump sum to add to her superannuation fund. Given the age of her motor vehicle, it will have to be replaced shortly perhaps with another second hand vehicle. She cannot even afford holidays in Australia, let alone overseas as she used to do during her relationship with the deceased.

165. The defendant for her part has a large capital base which does not appear to be used to provide income for her. No doubt she is still coming to terms with managing her finances after the result of this case is known.

166. In my view, an appropriate legacy is the sum of $225,000.

Orders

(1) I order that the plaintiff receive a legacy out of the estate of the deceased of $225,000.

(2) Subject to any submissions made within 7 days of this order, I order that the plaintiff's costs on the ordinary bases and the defendant's on the indemnity bases be paid out of the estate of the deceased and the notional estate of the deceased.

(3) Interest is to run and the legacy at the rate provided for in the Probate and Administration Act 1898 from three months from today.

(4) I designate as notional estate to the extent necessary to meet the payments above, the deceased's share of property jointly owned by the deceased and the defendant in Walter St, Paddington, New South Wales.

(5) Parties at liberty to apply.

Amendments

07 Mar 2013

corrected representatives

Paragraphs: coversheet