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- Unreported Judgment
- Appeal Determined (QCA)
Kozak v Matthews QCA 296
SUPREME COURT OF QUEENSLAND
SC No 8920 of 2005
Court of Appeal
General Civil Appeal
14 September 2007
3 September 2007
Jerrard JA, Cullinane and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1.That the appeal be dismissed
2.That the appellant pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – APPEALS – where the appellant was the de facto husband of the deceased – where the appellant and the deceased signed a deed in relation to his claim to her property upon her death – where the primary judge held that the deceased’s will made adequate provision for the appellant’s maintenance and support – where the primary judge held that the deed was a relevant consideration in assessing the totality of the relationship between the appellant and the deceased – whether the primary judge’s discretion miscarried
Succession Act 1981 (Qld), s 41
Golosky v Golosky Unreported, New South Wales Court of Appeal, Kirby P, Handley and Cripps JJA, 5 October 1993, cited
Goodman v Windeyer (1980) 144 CLR 490, cited
House v The King (1936) 55 CLR 499, followed
Singer v Berghouse (1994) 181 CLR 201, followed
K T Magee for the appellant
D R M Murphy SC and S J Armitage for the respondents
Haney Lawyers for the appellant
Lewis & McNamara for the respondents
 JERRARD JA: In this appeal I have read the reasons for judgment of Wilson J, and respectfully agree with those, and with the orders proposed by Her Honour.
 CULLINANE J: I have read the reasons for judgment of Wilson J in this matter. I agree with those reasons and the orders she proposes.
 WILSON J: The appellant Peter George Kozak was the de facto husband of the late Jacqueline Clare Messer (“the deceased”). She made some provision for him in her will, but he considered it inadequate and brought an application for further provision under Part 4 (ss 40-44, family provision) of the Succession Act 1981 (Qld). This is an appeal against the dismissal of that application.
 Section 41(1) of the Act provides –
“41 Estate of deceased person liable for maintenance
(1) If any person (the ‘deceased person’) dies whether testate or intestate and in terms of the will or as a result of the intestacy adequate provision is not made from the estate for the proper maintenance and support of the deceased person’s spouse, child or dependant, the court may, in its discretion, on application by or on behalf of the said spouse, child or dependant, order that such provision as the court thinks fit shall be made out of the estate of the deceased person for such spouse, child or dependant.”
 It is well established that there are two questions to be considered by the Court –
(i)the “jurisdictional question” of whether the deceased left the appellant without adequate provision for his proper maintenance and support; and
(ii)if the first question is answered in the affirmative, what provision (or further provision) should be made for him.
 The primary judge answered the jurisdictional question in the negative, and so dismissed the application.
Nature of appeal
 In Singer v Berghouse Mason CJ, Deane and McHugh JJ made it clear that the jurisdictional question is one of objective fact, though it involves the making of value judgments. They cited with approval this passage from the judgment of Gibbs J in Goodman v Windeyer –
“[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards”
and went on –
“It is clear from this passage that his Honour was conveying that the primary judge was in essence making a value judgment in much the same way as a primary judge makes a sound discretionary judgment in personal injury cases when he or she assesses the quantum of damages say for pain and suffering, and for loss of amenities of life.”
Their Honours held that the principles that govern appellate review of a discretionary decision regulate an appeal from a decision on the jurisdictional question, approving the following comments of Kirby P in Golosky v Golosky –
“Unless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first. Second opinions in such cases would be bought at the cost of diminishing the finality of litigation in a troublesome area and, sometimes at least, with a burden of costs upon the estate which should not be encouraged.”
 The principles that govern appellate review of a discretionary decision are well settled. In House v The King Dixon, Evatt and McTiernan JJ said –
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
 The deceased died on 20 February 2005. By her will made on 7 December 2004 she disposed of her assets as follows –
“3. I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever nature and kind and whatsoever situate of or to which I am now or may at the time of my decease be seized possessed or entitled unto and to the use of my Trustees upon the following trusts:-
(a) To pay my just debts funeral and testamentary expenses and any Probate Succession or other Death Duties payable in respect of my estate.
(b) If I am living as husband and wife with my partner PETER KOZAK then I DIRECT my executors to do the following:
(i) Permit the said PETER KOZAK to reside in my property at 16 Windsor Way, Pialba for a period up to and including twelve (12) months rent free;
(ii) Permit the said PETER KOZAK to use all household property and furniture during that rent free period;
(iii)Pay all rates and insurances on the said property from estate funds.
(c) After expiry of the tenancy detailed in paragraph (b) above, to pay and divide the residue of my estate to and among such of my Children as shall be living at my death in equal shares namely KAYLENE JOY MESSER, TRACEY ANNE MATTHEWS, PETER SHANE MESSER, GRANT LOUIS MESSER and BRIAN KEITH MESSER.
4. PROVIDED HOWEVER that in case any child of mine shall die in my lifetime leaving issue living at my death who attain the age of eighteen years then such issue shall stand in the place of such deceased child and take per stirpes and equally between them if more than one the share of my estate which such deceased child would have taken if he or she had survived me and had attained a vested interest.”
All five children survived her.
 The deceased was born on 23 June 1946. She married Keith Brian Stanley Messer, a farmer, in 1964. They had five children between 1964 and 1972.
 The appellant was born on 21 September 1955. He has never married and has no children. He has no formal qualifications. He has enjoyed good health apart from losing his sight in one eye.
 In 1997 the deceased and the appellant met when he was working as a labourer on a farm owned by her husband. He had been living in a caravan from July 1993. They commenced an intimate relationship in January 2000. The deceased’s marriage ended in June 2000; she left the matrimonial home and went to live with the appellant in a rented apartment in Hervey Bay.
 Four months after the deceased and the appellant began living together she was diagnosed with breast cancer. She had a mastectomy in November 2000, and according to her husband she was given a prognosis of only two years. In fact she survived for more than four years.
 Between November 2000 and January 2002 the deceased and the appellant lived in a cottage on a property owned by her sister. The deceased was diagnosed with secondary bone cancer in May 2001.
 In January 2002 the deceased and the appellant moved into a house she purchased at Pialba. During her marriage all the matrimonial assets had been held in her husband’s name, and she had no independent means. Her husband made funds available by way of advance against their property settlement, which she used to purchase the house for $230,000, as well as to buy furniture, air-conditioning and a car. The deceased and the appellant lived there until she died in February 2005.
 On 5 March 2002 the deceased and the appellant executed a deed in these terms –
“[Obscured] DEED is made this 5th day of March 2002
BETWEEN: JACQUELINE CLARE MESSER
of: 16 Windsor Way, Pialba in the State of Queensland (“Jacqueline”) of the one part
AND: PETER KOZAK
of: 16 Windsor Way, Pialba in the State of Queensland (“Peter”) of the other part
A. Jacqueline and Peter have been living together as husband and wife for approximately one and a half years.
B. They have agreed on certain arrangements between them concerning their property and entitlements and wish to record the terms of their agreement.
C. Each party has been independently advised by his or her own legal representative.
NOW THIS DEED WITNESS:
1. This agreement shall be binding upon the heirs executors administrators and assigns of each party.
2. The parties intend this agreement to be binding even if they subsequently are formally married. They understand that this intention does not bind a court under the provisions of Part VIII of the Family Law Act 1975 but express this intention as a factor relevant to the exercise of judicial discretion under Part VIII or any legislation which replaces that part of the Family Law Act 1975.
3. At the date of this agreement all property owned by each of the parties shall remain the sole property of the party who paid for it or received it as a gift.
4. Peter acknowledges that he has made no financial contribution to Jacqueline’s assets and agrees that in the event that they cease to cohabit or in the event of Jacqueline’s death, he will make no claim upon her or upon her estate as the case may be in respect of her assets.
5. If the parties shall hereafter acquire any property in respect of which each has made a contribution to the cost of acquisition, then in the absence of any express agreement to the contrary, each shall be entitled to that property as tenants in common in shares proportionate to their contributions to the cost of acquisition.
6. During cohabitation each party shall contribute equally to day to day living expenses including routine maintenance of the dwelling in which they reside from time to time provided that:
(a) Peter shall not be obliged to contribute to rates, insurance, capital alterations or improvements, or substantial maintenance (for example re-painting);
(b) But if he does contribute to the cost of the matters referred to in sub-paragraph (a) above, such contribution shall not (in the absence of any express agreement to the contrary) entitle him to any share or interest in the residence.
7. This agreement shall only be rescinded or varied by a written agreement executed by both parties with a similar degree of formality as the present agreement.
IN WITNESS WHEREOF” etc.
Despite what was said in Recital C, the appellant did not receive independent legal advice before executing the deed, and he did not read it until he obtained a copy shortly before the deceased died.
 The deceased and her husband reached agreement about the settlement of their matrimonial property in July 2002. From an asset pool in excess of $11 million, most of it invested in farming properties worked by their sons, she received a total of $1.25 million. She had already received $22,797.31 in 2000 and 2001, $250,000 in January 2002 and $250,000 in March 2002, and she received the balance of $727,202.69 in July 2002. She invested most of it in superannuation.
 The deceased’s health deteriorated rapidly from November 2004. She made her will in December that year, and passed away a little over two months later.
Nature of relationship
 The primary judge found –
“ The [appellant] and the deceased enjoyed a loving, mutually-caring, relationship until her death. He performed household chores (mowing, gardening, cleaning of walls and floors, and washing and hanging out clothes), undertook certain odd jobs (oiling external window frames, painting railings and verandah, and enclosing an area under the house with palings), and acted as a full-time carer for the deceased assisting her when required with meals, dressing, showering, going to the lavatory, and taking medicines. He was also able to undertake some painting for Ms Matthews [the deceased’s daughter] for which he was paid by the deceased. The [appellant] provided full-time care for the deceased from on or about 18 December 2000 until she died. Members of the deceased’s family, in particular her sister Anne and the respondents, helped care for her, in particular in the last months of her life from December 2004 to her death. Blue nurses were also in attendance in those last months.
The [appellant] was the companion of, and carer for, the deceased when she underwent treatment for her cancer, including chemotherapy at the Hervey Bay hospital in 2001, 2003, and 2004, radium treatment at the Royal Brisbane hospital in 2001, and treatment for lumps on her head at the Wesley hospital in 2003. Approximately every six weeks in a fifteen month period they travelled to the Gold Coast where the deceased consulted a naturopath. They went on frequent holidays together in Brisbane (four to six times a year), Mackay, Canberra, Norfolk Island, Daydream Island, and Maroochydore. They went to clubs at Hervey Bay at least once a week. They visited the deceased’s children and grandchildren at Clermont, Moura, and Carnarvon Gorge twice a year. The [appellant] swore that he and the deceased enjoyed ‘common interests including dining out, clothes shopping, and buying gifts for the deceased’s children and grandchildren’. The deceased paid for the majority of the expenses incurred in respect of their numerous holidays.
From January 2000 to December 2000 the [appellant] received an unemployment allowance called Newstart of about $400 a fortnight which he had been receiving before he began living with the deceased. In December 2000 the [appellant] received a carer’s pension of $90 a fortnight together with another allowance which made his total income about $400 per fortnight. The [appellant], who had no savings at the beginning of his intimate relationship with the deceased, made no contribution to the purchase of the house at Windsor Way. The deceased paid the local authority rates and the premiums for the insurance on the house. He paid no rent while he lived with the deceased. Each contributed about $200 per fortnight to a fund earmarked for entertainment, food, and other outgoings.”
 The appellant gave the deceased love and companionship. He cared for her as her health declined, with the assistance of her sister and daughters, as well as the Blue Nurses. He was never in a position to make any financial contribution to their accommodation or lifestyle apart from his modest contribution to entertainment, food and similar outgoings. The deceased discharged a debt of $7,600 owing on his car in August 2002, and she gave him $5,000 shortly before she died.
 The primary judge correctly summarised the considerations relevant to the jurisdictional question when he said –
“The court must then determine first whether it is satisfied that adequate provision was not made from the estate for the proper maintenance and support of the [appellant]. That calls for an assessment of whether the provision made for him was inadequate for what, in all the circumstances, was the proper level of maintenance etc., appropriate for the [appellant], having regard to, among other things, the [appellant]’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the [appellant] and the deceased, and the relationship between the deceased and other people who have legitimate claims on her bounty. … The question of the adequacy, or inadequacy, of the provision made is not to be decided in a vacuum, or by looking simply to the question whether the [appellant] has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise the deceased made to the [appellant], the circumstances in which it was made, and, changes in the arrangements between the parties after it was made. Those matters will however never be conclusive. The age, capacities, means, and competing claims, of all the potential beneficiaries must also be taken into account and weighed with all of the other relevant factors: Vigolo v Bostin (2005) 221 C.L.R. 191 at p.231 per Callinan and Heydon JJ.”
He went on to consider all of those factors, including the deed executed in March 2002, the modest financial circumstances and family commitments of the deceased’s five children, and the uncertainties surrounding the future worth of her husband’s estate, the possibility that her husband will remarry, and whether the children will inherit his estate.
 Counsel for the appellant submitted that the primary judge erred in not disregarding the terms of the deed.
 His Honour said of the deed –
“The court cannot of course give effect to an attempt by the [appellant] to contract out of making an application, in this case in the deed executed nearly three years before her death on 5 March 2002 (Lieberman v Morris (1944) 69 C.L.R. 69), but the evidence of the execution of the deed by the deceased and the [appellant] is relevant to an understanding of the terms upon which they cohabited after it was executed. In Singer v. Berghouse a widow applied for provision out of her husband’s estate. An ante-nuptial agreement was held to be admissible for the limited purpose of showing that the parties thought its terms fair at the time they signed it: in the event of her husband’s death the wife could not say that she had expectations of a more affluent life than she had led before the marriage. In this case the deed is relevant to the totality of the relationship between the [appellant] and the deceased, because, at least after its execution, the relationship between the [appellant] and the deceased proceeded on the assumption, reinforced by assurances by the [appellant], that its terms would be honoured. At the hearing something was made on behalf of the [appellant] of his evidence that he had not read the deed before he executed it and did not receive any legal advice about it. I do not regard those matters to be of any moment since he freely admitted that he knew what the effect of the deed was.”
 In oral submissions counsel for the appellant emphasised –
(a)that when the deed was executed the deceased was terminally ill;
(b)that the deceased survived longer than she was expected to when the deed was executed;
(c)that the appellant did not read the deed or obtain legal advice before executing it;
(d)that the appellant executed the deed to relieve the stress to which the deceased was being subjected by two of her sons repeatedly asking her whether he had signed it yet;
(e)that when the deed was executed neither the deceased nor the appellant could have foreseen the extent and level of care the appellant would provide for her in the ensuing 3 years.
 I do not think His Honour erred in taking the deed into account in the way he did. From shortly after they began living together, the deceased and the appellant knew that she was terminally ill. As senior counsel for the respondents submitted –
“The relationship was not one that can be compared with a widow or even a widower from a marriage of many years. It was a relationship based upon an understanding that they were going to enjoy each other’s company. Mrs Messer was going to pay for that relationship and Mr Kozak was there on the understanding that he would take nothing from the assets away from the children of the deceased.”
The primary judge’s finding that the relationship proceeded on the assumption, reinforced by assurances from the appellant, that the deed would be honoured accorded with the evidence. He knew and understood the purport of the deed. The deceased never represented to him that she would make any further provision for him in her will, and she took active steps to ensure he was under no misapprehension in that regard. He expressly accepted that to be the position, and did not demur.
Companionship and care
 The deceased survived longer than expected. That gave her and the appellant more time together, albeit punctuated by her treatment needs. His constant presence was no doubt a source of mutual contentment. But it was really only in the last three months that her treatment needs were unrelenting and all absorbing. Mercifully he did not have to shoulder that burden alone – it was shared by her sister and her daughters with help from the Blue Nurses.
 Of course the companionship and care the appellant provided the deceased were relevant factors in the assessment of the adequacy of the provision she made for him. So, too, was the contrast between the lifestyle they enjoyed together and the appellant’s previous lifestyle to which he would have to return twelve months after she died, when his right to occupy the house came to an end.
 But these factors had to be assessed in the context of a relationship in which both parties knew almost from the outset that she had a terminal illness and one in which it was mutually understood that he would make no claim on her estate. They had to be weighed against the competing claims on the deceased’s bounty.
Did the primary judge err?
 In fact the deceased made provision for the appellant, directing her executors to permit him to reside in the house rent free for twelve months after her death and to provided incidental benefits over that period. Counsel for the appellant submitted that adequate provision for his proper maintenance and support would have been $220,000 – a sum sufficient to purchase a modest home unit in the Hervey Bay area.
 The primary judge was called on to make a value judgment whether the provision made in the will was adequate in all the circumstances. While it would have been open to him to have concluded that it was inadequate, in my respectful opinion he has not been shown to have fallen into error in any of the ways enumerated in House v The King, and he has not been shown to have made “an entirely erroneous estimate of what, in the circumstances, was an adequate provision …”
 I would dismiss the appeal and order the appellant to pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis.
 Singer v Berghouse (1994) 181 CLR 201, 208-211.
 (1994) 181 CLR 201.
 (1980) 144 CLR 490, 502.
 Singer v Berghouse (1994) 181 CLR 201, 211.
 Unreported, New South Wales Court of Appeal, Kirby P, Handley and Cripps JJA, 5 October 1993.
 (1936) 55 CLR 499, 504-505.
 Transcript of the hearing, p 191.
 in the Hervey Bay area.
 Kozak v Matthews & Anor  QSC 203.
 Kozak v Matthews & Anor  QSC 203, .
 Appellant’s outline of argument, .
 Kozak v Matthews & Anor  QSC 203, .
 Transcript of appeal, p 32.
 (1936) 55 CLR 499.
 Singer v Berghouse (1994) 181 CLR 201, 212 endorsing the approach of Sheller JA in the New South Wales Court of Appeal.
- Published Case Name:
Kozak v Matthews
- Shortened Case Name:
Kozak v Matthews
 QCA 296
Jerrard JA, Cullinane J, Wilson J
14 Sep 2007
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 203||22 Feb 2007||Application for further provision from an estate dismissed; adequate provisions made having regard to the relevant factors: Helman J.|
|Primary Judgment|| QSC 204||30 Mar 2007||Respondents have their costs in opposing the application paid out of the estate on the indemnity basis: Helman J.|
|Appeal Determined (QCA)|| QCA 296||14 Sep 2007||Appeal dismissed with costs; discretion of primary judge did not miscarry in finding the will made adequate provision for maintenance and support and in his consideration of a deed in assessing the relationship: Jerrard JA, Cullinane and Wilson JJ.|