Panagopoulos v Panagopoulos [2022] NSWSC 1151

Supreme Court New South Wales

Medium Neutral Citation: Panagopoulos v Panagopoulos [2022] NSWSC 1151 Hearing dates: 1 – 5, 8 March 2021; 14, 16 – 17 March 2022 Date of orders: 30 August 2022 Decision date: 30 August 2022 Jurisdiction: Equity Before: Robb J Decision: The orders of the Court are: (1) Order that the plaintiff's claims in his second further amended statement of claim be dismissed. (2) Declare on the cross claimant's cross claim that the cross claimant is entitled to be paid $13,824 out of the estate of the deceased, and that the cross claimant has a charge over the estate to secure that payment. (3) Order the plaintiff to pay the defendant/cross claimant's costs of the proceedings on the ordinary basis. (4) Order that, to the extent that the defendant does not recover from the plaintiff his costs of the proceedings, those costs be paid out of the estate of the deceased on the indemnity basis. Catchwords: SUCCESSION — family provision — claim by adult child for provision from the deceased's estate under Family Provision Act 1982 (NSW) — proceedings not commenced within time — whether sufficient cause shown to extend time — plaintiff commences proceedings impugning rectification order of this Court rectifying last will of the deceased — Court discovers during hearing that plaintiff became bankrupt between events of relevant claims and commencing of proceedings — only claim surviving bankruptcy is family provision application — proceedings brought almost 18 years out of time — attempt to show sufficient cause for delay premised on plaintiff's alleged ignorance as to interest in deceased's estate — plaintiff found to have known of life interest in residential property over a decade before bringing proceedings — prejudice to other beneficiaries occasioned by deterioration in plaintiff's position over time — costs of dismissed claims to be borne by plaintiff — costs of proceedings disproportionate to size of estate — costs incurred largely by plaintiff's actions — plaintiff not granted leave to bring proceedings out of time — Court would not otherwise have found that adequate and proper provision not made for plaintiff — Court would not otherwise have exercised discretion to order further provision Legislation Cited: Bankruptcy Act 1966 (Cth), ss 58, 153A, 154 Conveyancing Act 1919 (NSW), s 66G Family Provision Act 1982 (NSW), ss 6, 7, 9, 14, 16 Succession Act 2006 (NSW), ss 58, 59, 72, Sch 1 cl 11 Testator's Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 4 Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 42.1 Cases Cited: Bassett v Bassett [2021] NSWCA 320 Choras v Farmakidis [2020] NSWSC 367 Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133 Last v Lewis [2022] NSWSC 791 McLeod v Johns [1981] 1 NSWLR 347 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45 Page v Hull-Moody [2020] NSWSC 411 Stojanovski v Stojanovski [2019] NSWSC 1713 Stojanovski v Stojovski [2016] NSWSC 976 Union-Fidelity Trustee Co of Australia Ltd v Montgomery [1976] 1 NSWLR 134 Category: Principal judgment Parties: Jim Panagopoulos (Plaintiff) George Panagopoulos (Defendant) Representation: Counsel: N Obrart (Plaintiff) S Docker (Defendant)