Daniel v Athans [2022] NSWSC 1712

Supreme Court New South Wales

Medium Neutral Citation: Daniel v Athans [2022] NSWSC 1712 Hearing dates: 8 – 10 August 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Equity Before: Robb J Decision: The Court: (1) Declares that the defendant as administrator of the estate of the late Richard John Janson (the deceased) holds the deceased's property at [No 36] on trust for the plaintiff. (2) Order that the defendant as administrator of the deceased's estate cause [No 36] to be transferred to the plaintiff within 28 days of these orders. (3) Orders that the plaintiff's costs be paid out of the deceased's estate on the ordinary basis. (4) Orders that the defendant's costs be paid out of the deceased's estate on the indemnity basis. Catchwords: ESTOPPEL — proprietary estoppel — encouragement — plaintiff and deceased close friends for over twenty years — deceased and deceased's mother own neighbouring properties — deceased allows plaintiff to reside rent-free in his property while deceased lives with mother — whether deceased represented to plaintiff that he could reside there 'for good' if he paid certain expenses and provided assistance to deceased's elderly mother — whether deceased later represented to plaintiff that deceased would transfer property to plaintiff for fulfilling assistance asked of him — whether plaintiff has equitable interest in property because of proprietary estoppel — estoppel claim successful SUCCESSION — family provision — claim by alleged member of household and dependant of the deceased for provision from the deceased's estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — whether eligible person — whether factors warranting — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — family provision claim successful in alternative Legislation Cited: Evidence Act 1995 (NSW), s 140 Succession Act 2006 (NSW), ss 57, 58, 59, 60, 91 Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.10 Cases Cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chisak v Presot [2022] NSWCA 100 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 488; [2010] NSWCA 84 Evans v Evans [2010] NSWSC 170 Evans v Evans [2011] NSWCA 92 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10 Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692 Moore v Aubusson [2020] NSWSC 1466 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Sarant v Sarant [2020] NSWSC 1686 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Spata v Tumino [2018] NSWCA 17 Sun v Chapman [2022] NSWCA 132 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Trentelman v The Owners – Strata Plan No 76700 (2021) 106 NSWLR 227; [2021] NSWCA 242 Yesilhat v Calokerinos [2021] NSWCA 110 Category: Principal judgment Parties: Raymond Daniel (Plaintiff) Luke Athans (First Defendant) Valerie Janson (Second Defendant) Representation: Counsel: C P Birtles & J Green (Plaintiff) J E Armfield & J Shandil (First Defendant)