Yesilhat v Calokerinos

1. [1]

   BATHURST CJ: I agree with the orders proposed by Macfarlan JA and with his Honour’s reasons. I also agree with the additional reasons of Brereton JA.

2. [2]

   MACFARLAN JA: This appeal relates to the estate of the late George Sclavos who died on 13 August 2013, aged 65 years. His purported informal will dated 16 October 2012 leaving his estate to his two nieces was challenged in proceedings brought by Mr Okan Yesilhat, who also sought an order for provision under the Succession Act 2006 (NSW) on the basis that he was in a de facto or close personal relationship with, or a dependent household member of, the deceased for 14 years before his death. The deceased never married and had no children. His estate was valued at in the order of $6 million as at the time of his death.

3. [3]

   In other proceedings, which are also the subject of the present appeal, the deceased’s executor, who was one of his two nieces, Ms Cleopatra Sclavos Calokerinos, claimed that Mr Yesilhat was liable to repay to the estate substantial funds which the deceased lent to him prior to his death. She also claimed amounts that she alleged Mr Yesilhat fraudulently misappropriated from the deceased’s bank accounts shortly after his death.

4. [4]

   After a 21-day principal hearing in 2016 and 10 subsequent hearing days in the following years, Slattery J of the Equity Division upheld the validity of the informal will, dismissed Mr Yesilhat’s Succession Act claim and entered judgment against him on the executor’s money claims. His Honour’s first and principal judgment was delivered on 9 June 2017 ([2017] NSWSC 666). In all, his Honour delivered four judgments in the years 2017 to 2020, comprising in excess of 300 pages ([2019] NSWSC 584; [2019] NSWSC 1752; [2020] NSWSC 1044).

5. [5]

   Mr Yesilhat’s first ground of appeal challenged the primary judge’s finding concerning the deceased’s informal will. His second ground, as expounded in his written submissions, alleged that his Honour’s findings (particularly as to the nature of Mr Yesilhat’s relationship with the deceased and as to whether funds provided to Mr Yesilhat were loans rather than gifts) are on eight identified bases “glaringly improbable” in the sense referred to in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29]. His third ground of appeal specifically challenged the finding that there was no de facto, close personal or dependent household member relationship between Mr Yesilhat and the deceased and his fourth ground challenged the finding that he fraudulently misappropriated funds after the deceased’s death. The fifth ground was not pressed and the sixth related only to the second appellant, Australia’s Best Tyres Pty Ltd, which is now in liquidation and did not press its appeal.

6. [6]

   On the first day of the hearing of the appeal there was also scheduled for hearing a Notice of Motion filed by the executor and originally returnable on 13 November 2017, with an amended version filed on 11 December 2020, seeking orders, inter alia, that the appeal be struck out as incompetent and that Mr Yesilhat pay the executor’s costs of the motion and appeal on the indemnity basis. The terms of the motion indicate that the claim that the appeal was incompetent was based upon allegations to the effect that the appeal was hopeless. An appeal is not incompetent simply because it is hopeless. But in any event, for the reasons that appear below, whilst not well-founded, the appeal was not hopeless. Moreover, no argument was put to the Court to support the claims for indemnity costs. In these circumstances, the notice of motion should be dismissed with costs.

7. [7]

   I note at the outset that, for the reasons given below, I have concluded that the second and third grounds of appeal should be rejected (as well as the fourth). The effect of this is that Mr Yesilhat’s challenge to the primary judge’s finding that Mr Yesilhat was not eligible to make a claim for provision under the Succession Act fails. He does not therefore have standing as a person actually or potentially interested in the distribution of the estate to challenge (as he seeks to do by his first ground of appeal) the primary judge’s refusal to revoke the 5 December 2013 grant of probate in common form of the informal will. As there has been no other challenge to it, that grant must stand and the first ground of appeal must be rejected. It would be undesirable in these circumstances for this Court to make obiter observations concerning the will which, if they accepted Mr Yesilhat’s submissions, might be construed as casting doubt on the now unchallenged validity of the will.

MR YESILHAT’S CASE AT FIRST INSTANCE

1. [8]

   Mr Yesilhat’s case as summarised by the primary judge was in essence as follows.

2. [9]

   Mr Yesilhat was born in 1982 and is of Turkish descent. He was married in his early 20s but said that he realised at an early age that his sexual orientation was towards men. He said that same-sex attractions were repressed by his family and cultural background.

3. [10]

   He met the deceased in 1999 when the deceased, who was a qualified pharmacist, was operating a pharmacy in Leppington in Sydney, as he had done since the late 1980s. Mr Yesilhat said that in the first two years after their meeting he and the deceased spent about three or four days a week together at the pharmacy after work, for anywhere between three to five hours on each of those days. Mr Yesilhat was then living at his parent’s home. He said that he and the deceased commenced a personal and intimate same-sex relationship, including a sexual relationship, by 2001, and that it was conducted entirely in secret and exclusively at the pharmacy. He knew that the deceased had two nieces but the deceased told him that he hardly ever saw them.

4. [11]

   His Honour’s summary continued:

5. [12]

   Mr Yesilhat said the deceased was like a father to him and told him that he was the “closest thing [he had] to a son”. He said that the deceased gave him advice and cash gifts, and that their sexual relationship continued.

6. [13]

   After his first marriage commenced in 2004 Mr Yesilhat was able to see the deceased less but visited him at the pharmacy on average two to three times a week, spending up to five hours with him, into the early hours of the morning. He said that the deceased would spend most of his time at work and “would sometimes go home to Stanmore [sic] and sleep for a few hours and then drive back to work but he really lived his life at the pharmacy and on many occasions he would sleep at work”. Mr Yesilhat’s reference to “Stanmore” was a mistaken reference to the home that the deceased owned at Strathfield which had been in his family for many years. Mr Yesilhat made a similar mistake when he referred to a number of properties that the deceased owned but said “the Stanmore [sic] property … was the one he lived in”.

7. [14]

   Mr Yesilhat said that in the second half of 2007, when his marriage to his first wife was failing, the deceased supported his enrolment in the Police Academy, from which he subsequently graduated. Whilst working as a police officer, Mr Yesilhat also found secondary employment as a manager at a business named Australia’s Best Tyres. When Mr Yesilhat indicated to the deceased in early 2011 that he and his brother (Gokan Yesilhat) were interested in purchasing the business, the deceased gave him cheques totalling $140,000 ($130,000 of which was for the deposit, the total purchase price being $750,000). Mr Yesilhat deposed in this context to the following conversation with the deceased, which he said occurred shortly after he took possession of the business in mid 2011:

8. [15]

   Mr Yesilhat said that as a result of this conversation the deceased supplied him with passwords and login details for his bank accounts and also a signed authority dated 1 August 2011 to operate two specific accounts, whose numbers had the final four digits of 2401 and 2428. These were two of the pharmacy overdraft accounts. Also at about this time, on 18 July 2011, the deceased arranged for three of his personal bank accounts (with the final four digits of 7244, 5559 and 9317) to be linked via his “NetBank” account (the Commonwealth Bank’s internet banking facility) to Mr Yesilhat’s NetBank account. The linkage allowed Mr Yesilhat to make payments to and from, and view the transaction histories and account balances of, the linked accounts. Over the next two years there were multiple substantial funds transfers between the deceased’s and Mr Yesilhat’s accounts.

9. [16]

   Mr Yesilhat said that in about July 2012 the deceased suggested to him that the tyre business should import tyres rather than buying them locally. Mr Yesilhat then sought to do that and said that the deceased assisted by allowing Mr Yesilhat to “just order it [a full container of tyres] and take whatever we need[ed] out of the account”.

10. [17]

    As to the deceased’s bank accounts, the primary judge said:

11. [18]

    In the meantime Mr Yesilhat re-married in 2011, after meeting his second wife in 2009. He said that his secret same-sex relationship with the deceased however subsisted until the deceased’s death.

12. [19]

    Following the deceased’s death on 13 August 2013 but at a time of day at which Mr Yesilhat said that he had not yet learned of the deceased’s death, Mr Yesilhat transferred to himself further monies out of the deceased’s accounts.

13. [20]

    Finally, as part of Mr Yesilhat’s case at first instance, he asserted that the informal will dated 16 October 2012 was fabricated and that Ms Calokerinos, or someone associated with her, destroyed a will the deceased made in Mr Yesilhat’s favour.

MS CALOKERINOS’ CASE AT FIRST INSTANCE

1. [21]

   The key elements of Ms Calokerinos’ case as summarised by the primary judge were as follows.

2. [22]

   Ms Calokerinos contended that the deceased never displayed any homosexual interests, had a number of long-term sexual relationships with women and did not have any same-sex relationship with Mr Yesilhat. She asserted that the relationship between the deceased and Mr Yesilhat was, at its highest, one of friendship and only commenced in 2007 (rather than in 1999, as Ms Yesilhat asserted) after Mr Yesilhat met the deceased through Mr Yesilhat’s first wife.

3. [23]

   Ms Calokerinos asserted that transfers from the deceased’s bank accounts to Mr Yesilhat (both by cheque and electronic transfer) from about March 2011 onwards constituted loans to Mr Yesilhat the deceased expected him to repay. She also asserted that, after learning of the deceased’s death on 13 August 2013, Mr Yesilhat fraudulently misappropriated funds from the deceased’s estate.

4. [24]

   Ms Calokerinos said that she and her sister, Ms Anna Sclavos-Lahana, the deceased’s other niece, had a strong and loving relationship with the deceased, who stood in place of their father on important occasions in their lives (their father having died when they were aged 3 and 5 years old respectively) and who retained close family ties with them.

5. [25]

   Ms Calokerinos denied that the informal will was fabricated and said that it was found near the deceased’s bed at his home in Strathfield.

THE PRIMARY JUDGMENTS

1. [26]

   It is sufficient to refer at this stage to the following aspects of the primary judgments. Other aspects are referred to later in connection with the specific grounds of appeal.

Credibility findings

1. [27]

   The primary judge concluded that Mr Yesilhat “was an individual upon whom no reliance could be placed, unless his evidence was corroborated by independent evidence” and that the Court “simply cannot trust a man with Mr Yesilhat’s dishonest inventive capacity”. His Honour’s reasons for forming these views were explained over a number of pages.

2. [28]

   His Honour also concluded that he should approach the evidence of Mr Allen Middlebrook, the deceased’s accountant, “with great circumspection”. His Honour found that some parts of the evidence of Mr Yesilhat’s brother, Gokan, were quite credible whilst other parts were not and that he was not an objective witness.

3. [29]

   His Honour found that Ms Cleopatra Calokerinos, the executor, was “both an honest and reliable witness” and there was “no substance whatsoever in any of the allegations of fraud or dishonesty against her”. His Honour “wholly accepted” her evidence and also took a favourable view of that of Ms Calokerinos’s sister, Ms Anna Sclavos-Lahana.

4. [30]

   In material respects his Honour also accepted the evidence of a number of witnesses as follows who gave evidence concerning the deceased’s presence and conduct at his pharmacy in Leppington:

   1. (1)

      Mr Gino Elasi and Mr John Elasi, brothers who operated a takeaway and newspaper store nearby. Gino was also the landlord of the deceased’s pharmacy.

   2. (2)

      Mr Salman “Sam” Cameron who worked part-time at the pharmacy.

   3. (3)

      Ms Boguslava Wosik who worked for the deceased, at first as a sales assistant at the pharmacy and later as the deceased’s bookkeeper.

   4. (4)

      Ms Leanne Vassallo who operated a nearby hairdressing salon.

   5. (5)

      Mr Jason Loader who operated a nearby butcher shop.

   6. (6)

      Ms Danijela Dacic who was a young retail assistant and later manager at the pharmacy.

   7. (7)

      Mr Silvio Torrisi who was a long-standing friend of the deceased and worked for him part-time at the pharmacy.

5. [31]

   His Honour also viewed favourably the evidence of Mr Charles Versace who was the vendor of the Australia’s Best Tyres business to the Yesilhat brothers, and of Mr Ivor Wall who was a car repairer and performed some repairs on the deceased’s car.

The challenge to the informal will

1. [32]

   As explained in [7] above, it is unnecessary and inappropriate for this Court to address Mr Yesilhat’s challenge to his Honour’s finding regarding the informal will in light of this Court’s finding, which I propose be made, that Mr Yesilhat had no standing to make that challenge. It is sufficient to say that the challenge was an arguable one based principally on the evidence of an expert document examiner, Ms Michelle Novotny, who found that the deceased’s signature was placed on the relevant document before his name was typed on it.

The family provision proceedings

1. [33]

   The following provisions of the Succession Act are relevant to this issue.

2. [34]

   The following provisions of s 21C of the Interpretation Act 1987 (NSW) are also relevant.

3. [35]

   His Honour noted that Mr Yesilhat claimed that he was an “eligible person” by reason of (b) (de facto relationship), (e) (dependent household member) and (f) (close personal relationship) of s 57(1) of the Succession Act.

4. [36]

   Having referred to relevant case authority, his Honour addressed as follows the non-exhaustive list of indicia of a de facto relationship set out in s 21C(3) of the Interpretation Act and found that no such relationship existed between the deceased and Mr Yesilhat and that they were not residing together (or, in the language of s 57(1)(b), “living” in such a relationship):

5. [37]

   His Honour then concluded that Mr Yesilhat was not an “eligible person” by reason of s 57(1)(e), both because he did not establish dependency on the deceased and because he was not a member of the deceased’s household:

6. [38]

   The primary judge also found that Mr Yesilhat had not brought himself within s 57(1)(f) by establishing that he had been living in a “close personal relationship” with the deceased, concluding:

The debt/trust claims

1. [39]

   Having earlier made more detailed findings, to some of which I will refer below when considering the grounds of appeal, his Honour stated the following conclusions:

2. [40]

   His Honour then acknowledged that the executor bore the onus of proving that the payments made were loans not gifts (see Heydon v The Perpetual Executors, Trustees and Agency Company (W.A.) Limited (1930) 45 CLR 111; [1930] HCA 26) and continued:

3. [41]

   Having earlier found that Mr Yesilhat knew the deceased was dead when Mr Yesilhat transferred these moneys from the deceased’s bank accounts, the primary judge stated the following conclusions:

4. [42]

   In his second judgment (of 22 May 2019: [2019] NSWSC 584) his Honour found that to the extent that money that Mr Yesilhat paid out of the deceased’s assets prior to the deceased’s death was received by Australia’s Best Tyres, and had not been repaid, that company was liable in restitution to repay the money to the estate. His Honour directed calculations to be made of the amounts so received by the company and of other drawings by Mr Yesilhat that were retained by or otherwise applied by him. By his third judgment (of 13 December 2019: [2019] NSWSC 1752) his Honour directed that further calculations be made and by the fourth judgment (of 11 August 2020: [2020] NSWSC 1044) his Honour directed the entry of judgments in the debt/trust proceedings against Mr Yesilhat in the sum of $123,600 and against Australia’s Best Tyres Pty Ltd in the sum of $95,355. As I have noted, that company did not pursue its appeal against the judgment awarded against it. These amounts did not include the $206,500 which Mr Yesilhat was found to have removed fraudulently from the deceased’s accounts between 13 August 2013 and 9 September 2013. This sum was repaid to the estate at the direction of the primary judge but is the subject of the fourth ground of the appeal.

FIRST GROUND OF APPEAL: CHALLENGE TO THE WILL

1. [43]

   For the reasons given in [7] and [32] above, this ground should be rejected on the basis of Mr Yesilhat’s absence of standing to advance it. It will therefore not otherwise be addressed.

SECOND GROUND OF APPEAL: WHETHER FINDINGS “GLARINGLY IMPROBABLE”

1. [44]

   Mr Yesilhat’s case on appeal recognised that the primary judge’s findings as to the nature of the relationship between the deceased and Mr Yesilhat and as to the character of the payments made to Mr Yesilhat, as well as most if not all of the subsidiary findings, were “likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence” (Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55]) and that in these circumstances his success on appeal required him to surmount a high hurdle. As stated in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[29], and as summarised in Lee v Lee at [55], in order to succeed on appeal it was necessary for Mr Yesilhat to establish that the primary judge’s findings were “glaringly improbable” or “contrary to compelling inferences”. As noted earlier, to this end Mr Yesilhat identified eight matters that he said established this. They are addressed seriatim as follows.

First Matter: access to bank accounts

1. [45]

   Mr Yesilhat submitted in relation to this matter that:

   1. (1)

      the primary judge “accepted that George linked 3 of his bank accounts to Okan’s and otherwise gave Okan unfettered access to all his other accounts via a signed Authority. That unfettered access continued for a period of 2 years”.

   2. (2)

      Mr Yesilhat’s transfers over the two year period exhibited “no pattern”, indicating that the accounts were to be treated as his own.

   3. (3)

      “This merger of finances was the hallmark of a de facto relationship and/or a close personal one” and indicated that the primary judge “erred in holding [that] the merging of the bank accounts indicated a debtor/creditor relationship and [that] the amounts were thus loans”.

   4. (4)

      if the deceased had intended the payments to be loans, he would have obtained security, or an interest in the business.

2. [46]

   As the executor pointed out, the deceased did not however give Mr Yesilhat “unfettered access to all his other accounts via a signed Authority” because the signed authority related only to two of his accounts and the deceased had a number of accounts apart from these and the three linked accounts. Nevertheless, consistent with Mr Yesilhat’s submissions, there was no effective limit on Mr Yesilhat’s access to the deceased’s accounts because the deceased also gave him his bank passwords and login numbers.

3. [47]

   When considering whether the relationship between the deceased and Mr Yesilhat was such that Mr Yesilhat was an “eligible person” for the purposes of his Succession Act claim, the primary judge did not overlook the matter presently relied upon, namely that Mr Yesilhat had access to the deceased’s bank accounts in the last two years of the deceased’s life and that that access was utilised extensively. In that context, his Honour described the relationship as involving “a high degree of financial interdependence” (Judgment at [753] quoted in [36] above).

4. [48]

   There was no error in his Honour treating that financial interdependence, although relevant, as not decisive in determining the nature of the personal relationship between the deceased and Mr Yesilhat. Its existence did not render his Honour’s findings concerning that relationship “glaringly improbable”. On the contrary, as I indicate when addressing the third ground of appeal, in light of his Honour’s rejection of Mr Yesilhat’s evidence his Honour’s conclusion as to the nature of the relationship accorded with the evidence before him. No general challenge to the rejection of that evidence is made on appeal. Certainly Mr Yesilhat contends on appeal that findings should be made consistent with his evidence but he does not contend that the simple path to that result is acceptance (contrary to the primary judge’s finding) that he was a credible and reliable witnesses. Of necessity, he points to the other evidence in the case to attempt to achieve that result.

5. [49]

   The existence of the financial links between the deceased and Mr Yesilhat did not of themselves establish that his Honour’s characterisation of payments to Mr Yesilhat as loans rather than gifts was “highly improbable”. At least implicitly involved in Mr Yesilhat’s submissions on appeal was however also the broader proposition that, taking the evidence as a whole, the primary judge’s finding that the payments were loans rather than gifts was erroneous, whether or not highly improbable. It is therefore necessary to address that broader proposition as follows.

6. [50]

   As indicated in his conclusions on this issue ([792] quoted in [40] above), the primary judge relied in his reasoning, inter alia, on evidence of conversations between the deceased and others, on conversations between Mr Yesilhat and others, and on “the pattern of regular repayments”. On the basis that the general rejection of Mr Yesilhat’s evidence is to be accepted, these matters in my view provided a sufficient basis for his Honour’s conclusion that the executor established that the payments were loans.

7. [51]

   So far as statements by the deceased were concerned, the primary judge accepted evidence from “credible independent witnesses”, namely Mr Torrisi, Mr Loader and Mr Wall (see [30]-[31] above) that the deceased had made statements to them indicative of payments to Mr Yesilhat and/or his tyre business being loans. In addition, his Honour accepted the executor’s evidence of conversations she had with the deceased to the same effect.

8. [52]

   So far as statements by Mr Yesilhat were concerned, the primary judge accepted evidence of Mr Versace (see [31] above) that Mr Yesilhat indicated to him that funding provided by the deceased in relation to the tyre business constituted loans. His Honour also accepted evidence of Ms Sclavos-Lahana that during a conversation with Mr Yesilhat in April 2013, she said to him, “Uncle George told us that he has lent you a lot of money to help you start in business” and that Mr Yesilhat did not deny or contest her statement.

9. [53]

   In relation to the “pattern of regular repayments”, the primary judge referred to evidence that Mr Yesilhat made substantial repayments to the deceased’s accounts from October 2011 to July 2013 totalling approximately $82,000 (this amount was later increased in his Honour’s fourth judgment after the parties found more repayments). From April 2013 to July 2013, the repayments were in regular instalments of $2,500 and were made from Australia’s Best Tyres’ account. One repayment (of $5,000 from Australia’s Best Tyres’ account on 10 January 2013) had the notation “pay back george ty”. Repayments prior to 2013 were made from Mr Yesilhat’s personal account. His Honour found that the repayments were “not compatible with the original advances being gifts not loans”.

10. [54]

    The evidence thus indicated that, at different times, repayments were made by both Mr Yesilhat and the business. That funds were repaid tended to contradict Mr Yesilhat’s evidence that none of the payments to him or the business were loans and the fact that repayments came from both sources supported his Honour’s conclusions that there was no basis for distinguishing between payments Mr Yesilhat procured for the business and for himself, and that all the payments were therefore intended to be repaid.

Second Matter: Mr Middlebrook’s evidence

1. [55]

   At first instance Mr Yesilhat read two affidavits of Mr Allen Middlebrook who was the deceased’s accountant for many years. Mr Middlebrook gave evidence that the deceased told him that Mr Yesilhat had “full access” to the deceased’s bank accounts and that he was “giving” money to Mr Yesilhat for the tyre business, that “any deposits by Sam [Mr Yesilhat] are not to be included in my returns” and that the deceased said that he had promised to look after Mr Yesilhat. Mr Middlebrook also said that the deceased “spent most of his time at the pharmacy” and “slept at the pharmacy” and described Mr Yesilhat as “like a son to me”.

2. [56]

   The primary judge saw and heard Mr Middlebrook cross-examined and did not overlook his evidence. Rather, his Honour effectively rejected it. His Honour said that “[o]n the whole, Mr Middlebrook’s evidence about the deceased on any subject was unsatisfactory. The Court gave it limited weight and prefers Ms Calokerinos’ version of their communications”. Having referred to the executor’s termination of Mr Middlebrook’s services as the estate’s accountant, which would have provided a reason for Mr Middlebrook to be ill-disposed to Ms Calokerinos, the primary judge stated that he approached Mr Middlebrook’s evidence with “great circumspection”. His Honour said that Mr Middlebrook had a poor memory and “presented as strangely emotionally labile”. His Honour then identified unsatisfactory and unusual aspects of Mr Middlebrook’s evidence.

3. [57]

   In his Notice of Appeal Mr Yesilhat contended that the primary judge erred in “not giving proper weight” to Mr Middlebrook’s evidence. However for the reasons that his Honour adequately explained, he did not find Mr Middlebrook’s evidence satisfactory. Mr Yesilhat was unable to point to any matter that rendered this credit-based rejection of Mr Middlebrook’s evidence “glaringly improbable” or “contrary to compelling inferences” (see [44] above).

Third Matter: the executor’s evidence

1. [58]

   There was evidence before the primary judge as to whether the deceased, although not at any time married, had any long-term de facto relationships. The parties accepted that he had a long-term relationship with Ms Anne Sklavos (from about the early 1980s to the early 1990s) but there was a dispute as to whether he had had a later relationship with Ms Elizabeth (Liz) Curtis (from about 2005 to 2008). Ultimately his Honour found, consistently with evidence given by Ms Calokerinos, that he did and that Ms Curtis lived with him at the Strathfield property “for a few years”.

2. [59]

   In so finding, his Honour said that Ms Calokerinos “inferred this relationship [between the deceased and Ms Curtis] from paperwork and handwritten notes she found amongst the deceased’s belongings mentioning the name of Ms Curtis and showing Strathfield as her home address” and that Ms Calokerinos “could not herself directly judge the nature of the deceased’s relationship with Ms Curtis” as she never saw them together.

3. [60]

   On appeal Mr Yesilhat contended that in making favourable findings as to Ms Calokerinos’ evidence in the proceedings, his Honour failed to take into account cross-examination of Ms Calokerinos to the effect that in earlier proceedings she had given evidence concerning the deceased’s relationships with women which was different to that which she gave in the present proceedings. This was however but one of many topics about which Ms Calokerinos was cross-examined in the course of a lengthy cross-examination extending over some 240 pages of transcript and his Honour was well aware of it because, not only did he hear it, he himself asked Ms Calokerinos a number of questions on that topic.

4. [61]

   In his written submissions on appeal Mr Yesilhat contended that the primary judge “gave no weight whatever to the inconsistencies” in Ms Calokerinos’ evidence on this topic. In the course of writing his principal judgment, already comprising some 200 pages, his Honour was not however obliged to extend it and mention every point that was raised in cross-examination, particularly one, such as this, that was at the periphery of the issues to be determined. As a result, I do not infer from the absence of mention of it that his Honour did not take proper account of the point in his overall assessment of Ms Calokerinos’ evidence. Mr Yesilhat has accordingly not identified any error in respect of the Third Matter.

Fourth Matter: the deceased’s loan card system

1. [62]

   A number of witnesses gave evidence before the primary judge that the deceased maintained a loan card recording system when he made loans to a third party, which he did from time to time. Mr Yesilhat submitted on appeal that it was significant that no loans to him appeared in the deceased’s loan card system, and that there was no other record of the loans or of any security taken by the deceased for their repayment.

2. [63]

   In rejecting argument put at first instance the primary judge concluded that the point did not “detract from Ms Calokerinos’ case that Mr Yesilhat’s accounts were loans”. His Honour gave a number of reasons for that conclusion, including the following referring specifically to the loan card system.

3. [64]

   First, the deceased did not need to include the transactions in his loan cards because he had a complete record of them through his banking records and statements.

4. [65]

   Secondly, the amounts passing between the deceased and Mr Yesilhat were “far larger than anything recorded in George’s loan card system”, indicating that there was no departure from that system.

5. [66]

   Thirdly, the evidence about how the deceased kept the system was not “sufficiently direct or reliable for it to be inferred that every loan was always recorded in the system…”.

6. [67]

   His Honour thus did not overlook the loan card system and the absence of any formal loan documentation but instead referred to the loan card system and decided that for identified reasons it was not of significance in the circumstances of the case. As a result, Mr Yesilhat did not identify any error arising out of the Fourth Matter he relied on.

Fifth Matter: the deceased’s diaries

1. [68]

   Over many years, the deceased made daily diary entries in a cryptic form that was largely unintelligible to others. Many of the entries are in the Greek language.

2. [69]

   Mr Yesilhat argued at first instance and on appeal that there were over 1,000 uses in the diaries of the letter “S”, either alone or in conjunction with other abbreviations (for example, “S.SHVE”, “S.PZA” and “TV.S”). He submitted that these should be inferred to be references to him (as he was often called Sam) and that they were in many instances records of activities of which Mr Yesilhat gave evidence: for example Mr Yesilhat gave evidence that “he routinely shaved George, ate pizza with him, watched TV with him and reviewed banking statements”.

3. [70]

   The primary judge gave a number of reasons for finding the diaries to be “of limited use in resolving the matters in issue”. As the respondent submitted on appeal consistently with this finding, whether the diaries indicated what Mr Yesilhat contended is purely a matter of conjecture. Mr Yesilhat was not able to link entries in the diary to any specific events or other matters that would prove that he was referred to in the diaries by the letter “S”. In fact the contrary inference appears from an entry made by the deceased under the heading “Notes” for June 2006 that “S ≡ Strath”, clearly indicating that “S”, at least at that time, was used to refer to Strathfield, where the deceased lived. Moreover, as the primary judge pointed out, Mr Yesilhat was specifically referred to in the diaries by the name “Okan” (or “OKN”) on a number of occasions from 2007 but not before. In addition, on appeal Mr Yesilhat’s counsel was unable to explain entries which, on his interpretation, would indicate that he was in Sydney at a time (October to November 2011) when the other evidence indicated that Mr Yesilhat was overseas.

4. [71]

   For these reasons, it must be concluded that Mr Yesilhat did not establish any error arising out of the Fifth Matter upon which he relied.

Sixth Matter: telephone records

1. [72]

   Mr Yesilhat’s first submission on appeal concerning the telephone records was as follows:

2. [73]

   The primary judge’s response as follows to this argument was well open to him to give:

3. [74]

   The inability of the telephone records to indicate, as Mr Yesilhat contended, that there was “a close and intimate relationship and not any debtor/lender relationship” between the deceased and him was demonstrated by the executor in oral argument on appeal. She pointed out that many of the calls (out of the 250 calls or text messages) were of virtually no length, suggesting they were no more than messages to call back or the like. Moreover, many of the calls were grouped around the time at which the tyre business was purchased. For example, on 30 June 2011, which was the day before settlement of the purchase of the tyre business, there were seven phone contacts (five calls and two text messages) between Mr Yesilhat and the deceased. At other times, weeks went by without any telephone contact between the two.

4. [75]

   For these reasons, Mr Yesilhat did not establish that the first way in which he relied on the telephone records assisted his appeal. The second way relates to the fourth ground of appeal and is dealt with where that ground is addressed below.

Seventh Matter: the evidence of the respondent’s witnesses

1. [76]

   The first category of evidence given by the respondent’s witnesses to which this aspect of Mr Yesilhat’s Notice of Appeal refers concerned proof of the validity of the informal will, a matter which I have indicated it is unnecessary to address.

2. [77]

   The second category of evidence comprised evidence which Mr Yesilhat alleged was to the following effect and corroborated his evidence:

   1. (1)

      Mr Lahana (who is married to the executor’s sister) said in evidence that the Strathfield property was like a storeroom and that the deceased slept at the pharmacy “even though there were no beds there”.

   2. (2)

      Mr Torrisi gave evidence that Mr Yesilhat was a regular visitor to the pharmacy and would stay there until the “early hours of the morning”.

   3. (3)

      The deceased did not bring any girlfriend or other companion to family occasions such as his nieces’ weddings.

   4. (4)

      The deceased wrote a letter dated 4 October 1991 addressed to “Dear Rev”, presumably a Greek Orthodox priest or other religious person, saying that he had had the same girlfriend for 10 years but he did not love her “to the extent where I want to marry her”.

   5. (5)

      Various other witnesses called by the respondent (such as Mr Wall, Ms Wosik, Mr Cameron and others) gave evidence that the deceased routinely socialised at the pharmacy, and cooked, ate and slept there.

3. [78]

   Using the same numbering, I refer to that evidence as follows:

   1. (1)

      Mr Lahana’s evidence:

   2. (2)

      Mr Torrisi’s evidence:

   3. (3)

      No companion at family functions:

   4. (4)

      The deceased’s 1991 letter to “Rev”:

   5. (5)

      Other witnesses for the respondent:

4. [79]

   In these circumstances, it is clear that Mr Yesilhat has not established that any error arose in relation to the Seventh Matter on which he relied.

Eighth Matter: the deceased’s interests in Greek properties

1. [80]

   Mr Yesilhat submitted on appeal that the primary judge failed “to give proper weight to the obvious credit issues” arising out of what occurred at interlocutory stages of the present proceedings concerning interests that the deceased held in properties in Greece. Mr Yesilhat contended that the primary judge should have treated the executor’s credibility as adversely affected by what occurred.

2. [81]

   The primary judge found that the property interests were only of “nominal or nil value” and had in fact been a financial burden on the Sclavos family. After full consideration of Mr Yesilhat’s arguments the primary judge concluded that the executor’s credibility was not affected by what was put to him.

3. [82]

   This matter falls into a similar category to the Third Matter referred to above. It is a matter arguably relevant to the executor’s credit but was fully addressed by his Honour, with substantial reasons being stated. Mr Yesilhat did not identify any arguable reason for finding that his Honour erred in his credit-based conclusion.

4. [83]

   In these circumstances, it cannot be concluded that the Eighth Matter supports Mr Yesilhat’s appeal.

The Eight Matters generally

1. [84]

   For the reasons given above none of the eight matters that Mr Yesilhat relied on to establish that findings of the primary judge were “glaringly improbable” or “contrary to compelling inferences” do that. Nor, I add, do they do that when looked at cumulatively.

THIRD GROUND OF APPEAL: THE SUCCESSION ACT CLAIM

1. [85]

   Mr Yesilhat appealed against the primary judge’s finding that he was not an “eligible person” for the purposes of s 57 of the Succession Act on any of the three bases as follows upon which he claimed to be eligible.

Section 57(1)(b): de facto relationship

1. [86]

   As recorded in [34] above, the expression “de facto relationship” is defined in s 21C(2) of the Interpretation Act to involve “a relationship as a couple living together”. Section 21C(3) requires “all the circumstances of the relationship” to be taken into account in determining whether two persons have such a relationship but nine factors of possible relevance are then listed, with a caveat that no particular finding in relation to any of those factors is necessary in determining whether two persons have a relationship as a couple.

2. [87]

   The primary judge considered these factors (see [36] above) and concluded that virtually none had been established. In particular, he concluded that there was an absence of a number of important indicia of a relevant relationship, namely, a common residence, a sexual relationship, relevant financial interdependence, relevant dependency, and relevant sharing of household duties. Having considered the whole of the circumstances, his Honour concluded that the existence of a de facto relationship had not been established. In finding that the deceased and Mr Yesilhat did not reside together, he at least implicitly found also that they were not a couple “living together” for the purposes of the definition of “de facto relationship”. His Honour made this finding explicit when he considered s 57(1)(f) (see [38] above).

3. [88]

   The principal matters upon which Mr Yesilhat relied in challenging these conclusions on appeal were as follows.

4. [89]

   First, he criticised the primary judge’s comment that Mr Yesilhat appeared in the witness box to be a person who “was cold” and that this was difficult to reconcile with Mr Yesilhat’s description of the warm relationship he had with the deceased. This was however a matter of impression of the witness that the primary judge was entitled to take into account.

5. [90]

   Secondly, Mr Yesilhat criticised the primary judge for having regard to Mr Yesilhat’s admitted deceit of his first wife in hiding from her the existence of his alleged same-sex relationship with the deceased. This was however also a matter that his Honour was entitled to take into account on credit and as to the existence of the claimed relationship with the deceased.

6. [91]

   Thirdly, Mr Yesilhat complained that the primary judge had insufficient regard to the deceased not having a female companion on various family and social occasions throughout their alleged same-sex relationship. His Honour however considered the evidence of this and for a number of identified reasons gave it little, if any, weight (see [78(3)] above). It was open to his Honour to do this.

7. [92]

   Fourthly, Mr Yesilhat asserted that he and the deceased “spent up to 10 hours a night, 3-4 nights a week over a 14 year period”:

8. [93]

   This submission considerably overstated even Mr Yesilhat’s evidence as to the time he spent with the deceased, much less that of other witnesses. As indicated in [10] and [13] above Mr Yesilhat gave evidence that in the first two years of their relationship he and the deceased spent about three or four days a week together after work, for anywhere between three to five hours on each occasion and that after Mr Yesilhat’s first marriage he visited the deceased at the pharmacy two to three times a week, spending up to five hours with him, into the early hours of the morning. Mr Yesilhat gave evidence that in the last three months of the deceased’s life they were seeing each other “at the minimum” three nights a week for over five hours each time. Undoubtedly they had a close relationship but even on Mr Yesilhat’s evidence it could not be concluded that they were at any time a couple living together.

9. [94]

   As well as the matters emphasised by his Honour as of particular significance is the absence at the pharmacy premises of a bed or shower. Although there was evidence that the deceased slept at the pharmacy at different times (usually by putting his head down on the desk), that he might do this was understandable as the pharmacy was usually open for business until the early hours of the morning and as the deceased grew older and his health deteriorated he became less inclined to travel back to his home at Strathfield. The absence at the pharmacy of the deceased’s clothes and other personal possessions (apart from a change of clothes) and his retention of his house at Strathfield were other matters supporting his Honour’s conclusions.

10. [95]

    The evidence would not have justified a conclusion that the deceased lived at the pharmacy, much less one that Mr Yesilhat also lived there. As the primary judge concluded, Mr Yesilhat was a visitor to the pharmacy who was not said to have slept there, at least not on any regular basis, and not kept his clothes and other personal possessions there.

11. [96]

    Moreover the primary judge’s finding that no sexual relationship existed between Mr Yesilhat and the deceased was a strong indication, even if not decisive, that they did not have a “relationship as a couple” as referred to in the definition of de facto relationship in s 21C(2) of the Interpretation Act. His Honour’s conclusion that there was no sexual relationship was a finding of fact that was heavily dependent upon his views as to the credibility of witnesses, particularly Mr Yesilhat. Nothing was advanced by Mr Yesilhat on appeal that indicated that that conclusion was “glaringly improbable” or otherwise deficient.

12. [97]

    His Honour’s finding that a de facto relationship did not exist was dependent on credit findings in a number of respects and was an evaluative finding taking account of “matters of opinion, impression, speculation and estimation”, analogous to the exercise of discretion. It was therefore a finding to which the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40 apply. An appellate challenge to such a finding fails unless the appellant demonstrates that “the judge has in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range” (White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [61], [87]-[88]).

13. [98]

    None of these grounds were established on appeal in the present case. In particular I consider that his Honour’s conclusions fell within the range of those reasonably open on the evidence.

14. [99]

    I add that his Honour’s findings are consistent with the observations of this Court in Smoje v Forrester [2017] NSWCA 308 at [42] that:

15. [100]

    In Smoje, this Court held that it was not reasonably open on the evidence to find that the deceased and respondent were, for the purposes of identifying whether there was a “close personal relationship” under the Succession Act, “living together” in a hotel room in which the deceased had been living in the months preceding her death. Significant matters relevant to that conclusion were that the respondent did not regard the hotel room as “home” and acknowledged that after he had visited and provided care to the deceased there, sometimes spending the night sleeping on the floor, he would return to his “home” to shower and have breakfast, and did not keep any clothing or other possessions in the hotel room (see [34]). The facts of the present case similarly require the conclusion that Mr Yesilhat and the deceased were not “living together” at the pharmacy.

Section 57(1)(e): dependency and member of household

1. [101]

   So far as it might apply to Mr Yesilhat, s 57(1)(e) of the Succession Act requires that the person who claims to be eligible was both dependent on the deceased and “a member of the household of which the deceased person was a member”.

2. [102]

   The primary judge found that Mr Yesilhat did not establish that he was dependent on the deceased. As recognised by his Honour in Judgment [754] and [770] quoted in [36] and [37] above, the deceased gave some financial support to Mr Yesilhat but, on the evidence, this to a significant extent related to the purchase and subsequent operation of the Australia’s Best Tyres business. Whilst Mr Yesilhat came to use funds he withdrew from the deceased’s account for personal purposes, the evidence did not indicate that he was reliant on the deceased for his day to day living expenses and it appeared that he had other sources of income including as a police officer and, subsequently, from the tyre business that he and his brother conducted.

3. [103]

   On appeal, Mr Yesilhat did not raise any matter that arguably indicated that the primary judge was in error in rejecting Mr Yesilhat’s allegation that he was in a relevant sense dependent on the deceased.

4. [104]

   Mr Yesilhat also failed at first instance to establish the other matter that s 57(1)(e) required him to establish, that is, membership of the same household as the deceased. At least in ordinary circumstances, membership of a household involves the persons concerned living together, and as summarised by the primary judge (at [765]) citing Kingsland v McIndoe [1989] VR 273, “a degree of continuity and permanency of living arrangements and a form of special familial relationship”. Other relevant authorities to similar effect were recently summarised by Henry J in Purnell v Tindale [2020] NSWSC 746 at [157]-[162].

5. [105]

   For the reasons given above when considering whether there was a de facto relationship, there was no error in the primary judge’s conclusion that Mr Yesilhat and the deceased were not living together. In the absence of any evidence indicating that they might nevertheless have been members of the same household, the challenge to the primary judge’s decision on this issue should be rejected.

Section 57(1)(f): close personal relationship

1. [106]

   An element of eligibility under s 57(1)(f) is that the persons concerned were “living together” (see the definition of “close personal relationship” in s 3(3) quoted in [33] above). For the reasons given above when addressing s 57(1)(b), Mr Yesilhat’s challenge to the primary judge’s conclusion that he and the deceased were not living together must be rejected.

Conclusion

1. [107]

   For the above reasons, Mr Yesilhat’s challenge to the primary judge’s conclusion that he was not an “eligible person” for the purposes of the Succession Act fails. His claim for an order for provision under that Act was accordingly correctly rejected by the primary judge.

FOURTH GROUND OF APPEAL: THE MISAPPROPRIATED MONEY CLAIM

1. [108]

   The primary judge found that Mr Yesilhat misappropriated funds that he withdrew from the deceased’s accounts on and after 13 August 2013. His Honour held that when Mr Yesilhat transferred the funds he knew that the deceased was dead and that he could not in those circumstances “have had any genuine belief that he had any legitimate authority to transfer those funds when he did”. An earlier reference to the issue by his Honour suggests that he would have reached the same conclusion if Mr Yesilhat was at the time of the transfers not aware that the deceased was dead but nevertheless aware that his health had taken a “sudden turn for the worse”. There was some evidence of the general deterioration of the deceased’s health over time, as the primary judge found that he “led a very unhealthy lifestyle” which included smoking all his life, eating a lot of fried food and not exercising, and the deceased’s diary entries of 8 and 9 October 2012 referred to him vomiting (using the Greek word “emeto”). On the morning of the day he died the deceased complained to Ms Leanne Vassallo that he was not feeling well.

2. [109]

   The deceased was discovered by persons other than Mr Yesilhat alive but barely conscious at about 2.30pm and was pronounced dead at about 4pm on 13 August. Mr Yesilhat made the transfers between 5.43pm and 5.58pm on that day. He gave evidence that he attempted to contact the deceased by calls made at 5.44pm and 6.01pm on that day and did not find out about the deceased’s death until his call to the deceased’s mobile at 6.41pm which was answered by police present at the pharmacy. The telephone records in evidence show calls from Mr Yesilhat’s phone to the deceased’s mobile, inter alia, of 3 seconds at 5.44pm, 1 second at 6.01pm and 2 minutes 19 seconds at 6.41pm. His Honour’s judgment (at [420]) suggests that there may have been more calls and text messages at about these times.

3. [110]

   The primary judge considered at some length evidence from Ms Margaret Palmer, an employee at the pharmacy, that Mr Yesilhat and his brother came to the pharmacy in mid-afternoon on 13 August, when police and ambulance officers were present at around the time of the deceased’s death, and that she saw them standing outside. Mr Yesilhat denied that this had occurred but his Honour accepted Ms Palmer’s evidence, which he found compelling.

4. [111]

   Before the primary judge Mr Yesilhat pointed to evidence that he said proved that he and his brother were at the tyre business in Roselands at the time Ms Palmer said she saw them at the pharmacy. This evidence was a telephone billing statement that listed calls from Gokan Yesilhat’s mobile at 10.32am, 11.39am, 12.46pm, 3.02pm, 4.23pm, 5.22pm and 6.08pm on 13 August 2013 made from Roselands, as well as invoices electronically issued by the tyre business at 10.49am and 4.02pm recording “Sam” and “Manager” as the person who conducted the transactions. Because the tyre business was located approximately 45 to 50 minutes’ drive away from the pharmacy, Mr Yesilhat contended that Ms Palmer must have been wrong.

5. [112]

   The primary judge in any event found, quite apart from Ms Palmer’s evidence about the Yesilhat brothers’ attendance at the pharmacy mid-afternoon on 13 August, that Mr Yesilhat nevertheless knew of the deceased’s death when he made the transfers from the deceased’s bank accounts later in the day. His Honour expressed his conclusions as follows:

6. [113]

   Later in his judgment, the primary judge referred to other evidence that he said assisted in his conclusion that Mr Yesilhat was aware the deceased was dead before he transferred the money. This included that the withdrawals were the “largest single transaction ever on George’s accounts in one day”, “took all George’s credit and debit facilities to their available limits” and that there was “no objective evidence that Mr Yesilhat was being pressed by anyone” to pay for any tyre purchase that would mean he had to make the transfers that very night.

7. [114]

   These were findings involving the resolution of issues of credit and were made after his Honour’s consideration of a large body of evidence. On appeal Mr Yesilhat raised only two other matters to support his challenge to the findings.

8. [115]

   First, Mr Yesilhat contended that the telephone records of the three calls to the deceased’s mobile that he made at 5.44pm, 6.01pm and 6.41pm were inconsistent with the findings because they were (in part) made after the money transfers, which suggested that he must not then have known of the deceased’s death, otherwise he would not have made the calls.

9. [116]

   The primary judge however referred specifically to the telephone records and to Mr Yesilhat’s submission as to their significance but noted also Ms Calokerinos’ submission that Mr Yesilhat “sent these messages as a cover for a financial transaction he had just executed in the few minutes after 5.43pm”. His Honour accepted Ms Calokerinos’ argument by holding that:

10. [117]

    This credit-based inference explaining how the telephone calls could be reconciled with his Honour’s other findings was reasonably open to his Honour. There was nothing glaringly improbable about it.

11. [118]

    Secondly, Mr Yesilhat complained that two propositions relied upon by his Honour were not “explored or put in cross examination to Okan or Gokan”. The first was the proposition that the “brothers handed over some of their electronic devices … to other employees” (see [422] quoted in [112] above). This proposition was not essential to his Honour’s reasoning as his Honour’s conclusion was fully sustainable on the other basis that he gave, as recorded in [423] at [112] above.

12. [119]

    The second proposition was that contained in Judgment [423] that Mr Yesilhat found out about the deceased’s death “by some other means”. An absence of the proposition being put to Mr Yesilhat in cross examination (assuming that to have occurred) does not assist Mr Yesilhat’s appeal. It was not crucial that that occur as the contention that Mr Yesilhat was aware of the deceased’s death at the time that he made the money transfers was clearly in issue, as evidenced by Ms Calokerinos’ submission quoted by the primary judge and referred to at [116] above. If (which is not known to this Court) that submission was not put until final address, it was open to Mr Yesilhat to allege that he was prejudiced and to seek leave to add to his evidence. He did not do this.

13. [120]

    Moreover, the effect of the primary judge’s conclusions was that the evidence established that Mr Yesilhat knew of the deceased’s death at the time of the money transfers but did not establish how he acquired that knowledge. No more was required in these circumstances for the sake of fairness to Mr Yesilhat than that he was aware when he gave evidence that the former proposition was being put against him, which he clearly was.

14. [121]

    For these reasons, the fourth ground of appeal is rejected.

ORDERS

1. [122]

   As I have rejected each of Mr Yesilhat’s grounds of appeal, his appeal should be dismissed with costs, as should the Notice of Motion to which I referred in [6] above. Accordingly, I propose the following orders:

   1. (1)

      Dismiss the Amended Notice of Motion filed on behalf of Ms Calokerinos on 11 December 2020, with costs.

   2. (2)

      Dismiss the appeal with costs.

2. [123]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Macfarlan JA. I agree with his Honour that the appeal should be dismissed, for the reasons given by his Honour. However, I wish to add my own reasons for concluding that the appellant Mr Yesilhat did not have standing as an eligible person to claim a family provision order, which is dispositive of the main issues in the appeal.

3. [124]

   In order to succeed in his claim for a family provision order, Mr Yesilhat had to establish that he was an “eligible person” within the definition of that term in s 57(1) of the (NSW) Succession Act 2006 (“Succession Act”). Relevantly, that involves that he be one of:

   1. (1)

      a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death (s 57(1)(b));

   2. (2)

      a person who was, at any particular time, wholly or partly dependent on the deceased person, and who was, at that particular time or at any other time, a member of the household of which the deceased person was a member (s 57(1)(e)); or

   3. (3)

      a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death (s 57(1)(f)).

4. [125]

   While there are differences between the statutory definitions of a de facto relationship [1] and a close personal relationship, [2] and the notion of a common household, [3] each of them involves a requirement that the person be “living with” the other person. For the following discussion that explains that proposition, I wish to acknowledge my indebtedness to the judgments of Murphy J of the Family Court of Australia in Jonah & White, [4] of Young AJ (as the sometime Chief Judge in Equity and Judge of Appeal had by then become) in NSW Trustee and Guardian v McGrath, [5] and the judgment of White J (as his Honour then was) in Yesilhat v Calokerinos, [6] a summary dismissal application in the present proceedings.

5. [126]

   A person is in a de facto relationship with another if they have a relationship as a couple living together. (NSW) Interpretation Act 1987 (“Interpretation Act”), s 21C, provides:

6. [127]

   While common residence is but one of the circumstances referred to in sub-s (3), and while the sub-section specifically provides that no particular finding in respect of any of those circumstances is necessary to a determination that two persons have “a relationship as a couple”, that does not mean that some degree of common residence is not indispensable in deciding whether the persons are in a de facto relationship as defined.

7. [128]

   First, the essence of a de facto relationship is to be found in the definition in s 21C(2)(a), being “a relationship as a couple living together” (emphasis added and repeated below), regardless of the status of the various circumstances referred to in sub-s (3). As Campbell JA explained (in respect of the former definition contained in (NSW) Property (Relationships) Act 1984 (“PR Act”), s 4, in Piras v Egan (emphasis added): [7]

8. [129]

   In other words, regardless of the circumstances in sub-s (3), the requirement of sub-s (2)(a) of “a relationship as a couple living together” is indispensable to the existence of a de facto relationship as defined.

9. [130]

   Secondly, although sub-s (3) provides that no particular finding in respect of any of the nine circumstances referred to in sub-ss (2)(a)-(i) is necessary for the existence of “a relationship as a couple”, it is notable that circumstance (b) appears to assume that there will be at least some common residence – unlike, for example, circumstance (c), which does not assume that there will necessarily be a sexual relationship. In the context of sub-s (2)(a), that is readily understandable.

10. [131]

    Thirdly, sub-s (3) is now concerned only with the notion of a “relationship as a couple”, as distinct from sub-s (2), which defines “a de facto relationship” as “a relationship as a couple living together”. In distinction to s 4 of the PR Act, the statutory language now contemplates that a relationship might qualify as a “relationship as a couple”, yet not as a “de facto relationship”, because the couple are not “living together”.

11. [132]

    Similarly, it is an element of a “close personal relationship” that the persons be living together. Succession Act, s 3(3), provides (emphasis added):

12. [133]

    It is also inherent in the concept of membership of the same household that the members of the household be living together. The notion of membership of a household involves a common residence in which two or more persons not only share the facilities but also live together. Membership of (as distinct from presence in) a household involves aspects of continuity and permanency of mutual living. Although the question as to when a living arrangement becomes a household is one of degree, and there are no hard and fast rules, at least generally, the minimum requirements include at least some element of residing (as distinct from visiting), and mutual living so that there is a quasi-family unit (as distinct from boarding). [8] The fact that a person lives in the residence of another only periodically, [9] or for a very short period, [10] is insufficient to render him or her a member of the other’s household, as the required degree of continuity and permanency is not present. Where one person occasionally stays over at the other’s house, but maintains his or her own separate accommodation as a principal place of residence, it cannot be said that they are living together or members of the same household, notwithstanding that the emotional relationship between them is substantial, strong, loving, intense, and enduring. [11] In this respect, there is a distinction between a visitor and a resident, which may be easier to recognise than precisely describe; but residence involves aspects of continuity and permanence, and indicia such as use of the place as an address, and as a location where personal items and effects are kept and the activities of daily living (such as sleeping, washing and dressing) are performed.

13. [134]

    Each of the three relevant categories of eligibility therefore involves “living together”, a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis. It is not essential to a finding of a de facto relationship that there be unbroken common residence, and it is not incompatible with the existence of a de facto relationship, as defined, that a party spend some nights each week elsewhere than in the “matrimonial home”. This is supported, in the case of a de facto relationship, by Interpretation Act, s 21C(3)(b), which in referring to “(b) the nature and extent of their common residence”, acknowledges that its nature and extent may vary. Many authorities, some of which are referred to below, acknowledge that continuous full-time cohabitation is not essential, although the reason for the absences will be relevant: thus absence for work travel, or leisure, will rarely if ever be inconsistent with “living together”, whereas absence because the person is maintaining another household might well be so, even if not invariably. However, some element of common residence is indispensable. As will appear, no authority holds that persons can “live together” or be members of the same household if they do not, to some extent, have a common residence.

14. [135]

    Counsel for Mr Yesilhat acknowledged that there was no authority in which arrangements similar to those which obtained in the present case had been held to amount to “living together”, but referred to the judgment of White J on the summary dismissal application in the present proceedings, [12] in which his Honour had declined to reject as unarguable the proposition that there was a de facto relationship. His Honour referred to the judgment of the Queensland Court of Appeal in in FO v HAF, [13] in which Keane JA (as his Honour then was), with whom McMurdo P and White J agreed, said:

15. [136]

    White J then observed: [14]

16. [137]

    So far as I can ascertain, no such “exceptional case”, where two people who have never lived in a common residence have nonetheless been held to be in a de facto relationship or a close personal relationship, or to be members of the same household, has ever occurred, and while not completely foreclosing the possibility, I doubt that there is one. The cases go no further than accepting that full-time cohabitation is not essential.

17. [138]

    In Weston v Public Trustee, the relationship was one in which the deceased stayed with the plaintiff in her home on weekends, but return to his flat for two or three days during the week; in the words of the judge: [15]

18. [139]

    Young J (as he then was) held that it was a borderline case, but that the parties were properly classified as de facto spouses. Notably, there was an element of common residence, with the parties living and sleeping under the same roof for several nights a week on an ongoing basis.

19. [140]

    In Hayes v Marquis, in the first three years of their relationship the man stayed in the woman’s home on average three times per week, and later four times a week, following which he moved in and they lived together full-time for about three years. McColl JA, with whom Beazley JA substantially agreed, held that the primary judge was correct to hold that the concept of "living together" did not require the parties to live together full-time: [16]

20. [141]

    Her Honour referred with approval to what Barrett J (as he then was) had said in Petersen v Gregory, [17] that the concept of "living together as a couple" involves "a personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting". That nonetheless assumes a shared residential setting, at least to some extent.

21. [142]

    Einstein J said that cohabitation, though not necessarily on a full-time basis, was essential: [18]

22. [143]

    In Moby & Schulter, [19] Mushin J, of the Family Court of Australia, after reviewing a number of authorities on the approach to be taken under the PR Act, [20] said that the element of “living together” required that the parties have lived together at some time, though not necessarily on a full time basis (emphasis added):

23. [144]

    In Vaughan v Hoskovich, White J held that the parties were in a de facto relationship even though they shared a common residence only on two or three days a week. His Honour referred with approval to the statement of Einstein J in Hayes v Marquis, and in the context of the definition of de facto relationship in the PR Act, said: [21]

24. [145]

    There was, nonetheless, an element of common residence for some days every week on an ongoing basis.

25. [146]

    In Jonah & White, Murphy J reviewed and analysed the authorities to conclude that the key to the definition (of a de facto relationship, in the Queensland legislation, which was substantially the same as that in the PR Act) is the manifestation of a relationship where the parties have so merged their lives that they are, for all practical purposes, living together as a couple on a genuine domestic basis. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the relevant factors referred to in PR Act, s 4(3) (and now Interpretation Act, s 21C(3)), are directed. [22] His Honour described the evidence in that case as showing two people who each sought to, and did in fact, maintain separate lives, but who came together, on a regular basis, for periods of time during which they enjoyed a loving, sexual relationship. However, there was no “merger of two lives into one”, or the “coupledom” earlier mentioned, so that it was not shown that the relationship was a de facto relationship as defined. [23]

26. [147]

    In NSW Trustee and Guardian v McGrath, Young AJ adopted Murphy J’s notion of “coupledom”. [24] In a factual situation where the deceased and the claimant had made a conscious decision not to formally live together, but she was a regular guest at his home, staying most weekends and enjoying an intimate relationship, and having referred to Weston v Public Trustee (which his Honour described as a borderline case), his Honour said: [25]

27. [148]

    It might be said that that was an extreme case, and it was an application by the administrator of the estate for judicial advice as to whether it would be justified in distributing the estate on the basis that Mr McGrath was the deceased’s de facto spouse. His Honour said that “the evidence just gets over the barrier to show that there was a de facto relationship”. Even so, there was at least common overnight residence for one night each week.

28. [149]

    In Yesilhat v Calokerinos, White J, acknowledging that persons may be in a de facto relationship even though they do not live together all the time, said that it was arguable that a couple may live together even though they do so only for limited periods in a place which is not their common residence. In response to the submission on behalf of Mr Yesilhat that it was an open question as to whether a shared residence or a shared household was necessary to establish a de facto relationship, and that if it were, it was satisfied in the present case because Mr Yesilhat’s evidence was that he and the deceased shared a residential setting at the pharmacy, albeit of an unconventional kind, his Honour said: [26]

29. [150]

    His Honour’s conclusion goes no further than to hold that there is arguably such an exceptional case.

30. [151]

    This Court’s latest pronouncement on the issue is to be found in Smoje v Forrester, where it was said: [27]

31. [152]

    None of the cases to which I have referred holds that parties lived together, or were members of a common household, in circumstances where there was no element of common residence. Given the plain meaning of the words “living together”, that is hardly surprising. Overwhelmingly, the cases support the view that there must be some element of common residence, though it need not be full-time. Visiting, even frequently and repeatedly, not for the purpose of residing, is insufficient.

32. [153]

    Taking Mr Yesilhat’s evidence at its highest – and assuming that there was a sexual relationship – it did not amount to common residence, to any degree. While that evidence would show that he and the deceased had a close, affectionate, and enduring relationship, it could not be said to establish that they were “living together” at the pharmacy, nor anywhere else. There is not a dichotomy, as the appellant’s submissions appeared to assume, between a relationship of debtor/creditor, and a de facto relationship. Mr Yesilhat’s evidence was that in the first two years of the relationship he and the deceased spent about three or four days a week together after work, for anywhere between three to five hours on each occasion; that after Mr Yesilhat’s first marriage, he visited the deceased at the pharmacy two to three times a week, for up to five hours, into the early hours of the morning; and that in the last three months of the deceased’s life, they were seeing each other “at the minimum” three nights a week, for over five hours each time. There was no evidence of Mr Yesilhat treating the pharmacy as a place of residence, nor that he kept or left any personal items or clothes there, let alone that he treated it as his residential address. His evidence does not establish that he ever “stayed over” at the pharmacy, let alone “moved in” or “resided” there. There was no bed there, nor any shower, and he did not sleep there overnight. Pressed on this question, counsel said (emphasis added): [28]

33. [154]

    Counsel’s concluding statement, that “he would then come home”, unintentionally but understandably and eloquently captures what is redolent from the evidence: that Mr Yesilhat did not live at the pharmacy, or with the deceased, but elsewhere, at his own “home”. At the pharmacy, his status was that of a visitor, albeit a welcome and frequent one, but he did not live there.

34. [155]

    Counsel submitted that Mr Yesilhat and the deceased had “no choice” but to conduct their relationship in the way they did, secretly at the pharmacy. Assuming that to be so, it is irrelevant: the question is not why they so conducted themselves, but whether objectively it amounted to “living together”. Two people do not live together by reason that they secretly use a workplace after hours to conduct a sexual relationship over a sustained period, even on a daily basis. However, it is not the circumstance that, on Mr Yesilhat’s case, their relationship was conducted at the pharmacy, that is crucial; the result would be no different if he had attended at the deceased’s Strathfield home to the same extent, for the same periods of time, and for the same purposes as he attended the pharmacy: it did not amount to “living together”.

35. [156]

    For that matter, the evidence did not establish that the deceased lived at the pharmacy. He did not keep personal effects or clothes there, and his diaries show that he plainly continued to regard Strathfield as his home. The diaries also show, consistently with other evidence such as that of Ms Dacic, that the deceased would sometimes stay there late at night, as the pharmacy remained open until the early hours of the morning, and in later years occasionally sleep over there rather than returning to his home at Strathfield, resting his head in his hands on a desk while sitting on a chair or stool. That does not amount to residing or living there.

36. [157]

    For those reasons, even if there was a sexual relationship between them, Mr Yesilhat and the deceased were not “members of the same household”, nor were they “living together”, either as a couple or in a close personal relationship. Unlike some of the cases to which reference has been made, this was not a borderline case, even taking Mr Yesilhat’s case at its highest.

37. [158]

    It follows that Mr Yesilhat was not an “eligible person”, and that his claim for a family provision order was rightly rejected as he was not an eligible applicant.

38. [159]

    Mr Yesilhat’s standing to seek revocation of probate of the deceased’s informal will depended on either his being a beneficiary under a competing will, or his being a de facto spouse of the deceased. No other will naming him as a beneficiary has been identified, and the conclusion that he was not in a de facto relationship with the deceased removes the only other basis on which he could have standing to contest the will. In those circumstances, he has no standing to propound his first ground of appeal, which impugns the primary judge’s refusal to revoke the grant of probate of the deceased’s informal will to the respondent, and, as Macfarlan JA explains, it is undesirable for this Court to make obiter observations concerning the will in such circumstances.

39. [160]

    I agree with Macfarlan JA, for the reasons given by his Honour, that Ground 4, which impugns his Honour’s conclusion that the sum of $170,500 withdrawn from the deceased’s accounts on the day of his death was fraudulently appropriated by Mr Yesilhat, fails. Ground 5, which impugned the conclusion that $218,955 drawn by Mr Yesilhat from the deceased’s accounts during his lifetime were loans and not gifts, which were therefore repayable with interest, was not pressed.

40. [161]

    For those reasons, and for the reasons given by Macfarlan JA, the appeal should be dismissed. I agree with the orders proposed by Macfarlan JA.