Rapaich v Rapaich [2021] NSWSC 992

Supreme Court New South Wales

Medium Neutral Citation: Rapaich v Rapaich [2021] NSWSC 992 Hearing dates: 9 August 2021 Decision date: 09 August 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [31]-[35] Catchwords: SUCCESSION — Family Provision — Proper construction of orders made following settlement — Whether provision should be made for portable life estate based upon Crisp v Burns Philp Trustee Company Ltd Legislation Cited: Succession Act 2006 (NSW) Cases Cited: Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported) Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 245 CLR 104; [2015] HCA 37 Toll (FGCT) Pty Ltd v Alphapham Pty Ltd (2004) 219 CLR 165; [2004] HCA 52. Category: Consequential orders Parties: Milka Rapaich (plaintiff) Zorica Rapaich (defendant) Representation: Counsel: K Morrisey (plaintiff) L Ellison SC (defendant) Solicitors: Safe Harbour Lawyer (plaintiff) Coleman Greig Lawyers File Number(s): 2020/143713

Judgment

The Proceedings 1. On 6 April 2021 the Court made final orders as a result of a settlement reached between the parties. On that day the matter was listed for hearing. 2. The orders made had the effect of granting the plaintiff additional provision pursuant to the Succession Act 2006 (NSW) ("Succession Act"). 3. A dispute has now arisen as to the proper construction of order 2 of the orders made. 4. Order 2 in is the following terms: In addition to the provision received by the plaintiff in clause 3(a) of the Will of Milan Rapaich dated 10 April 2007, the plaintiff receive from the proceeds of sale of the estate realty the benefit of a sum not exceeding $550,000 (which sum shall become available upon the completion of the sale of the estate realty) with the defendant to purchase or otherwise provide and hold for the plaintiff's use and occupation from time to time, the right to have provided to or for her by a church, government, or other reputable or private institution or organisation providing the same for elder, retired, sick or incapacitated persons, accommodation with or without health care, hospitalisation and nursing or one or more of such services or like services for her lifetime at a net cost of no more than $550,000 with the said sum (or the net proceeds thereof) forming part of the deceased's residuary estate upon the plaintiff's death, such residuary estate to be dealt with pursuant to clause 4 of the Will of the deceased. 1. The dispute has arisen as to whether the words the "sum not exceeding $550,000" is to be paid to or for the benefit of the plaintiff in respect of services other than accommodation provided to her by the institutions in which she lives and as a lump sum rather than a capped amount. 2. The question in my view that arises is one of construction. 3. In the alternative although the plaintiff did not file a motion (and the court did not insist on one) she seeks to invoke the court's jurisdiction under ss.65 and 66 of the Succession Act. 4. Both plaintiff and defendant have filed affidavit evidence on the issues.