Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146

Supreme Court New South Wales

Medium Neutral Citation: Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 Hearing dates: 17 – 21 and 24 June 2024; further written submissions 25 June 2024 Date of orders: 9 September 2024 Decision date: 09 September 2024 Jurisdiction: Equity Before: Pike J Decision: (1) In proceedings 2021/00275570 the statement of claim be dismissed. (2) In proceedings 2023/00157906 the summons be dismissed. (3) In proceedings 2021/00275570 and 2023/00157906: (a) direct the parties to confer and seek to agree orders as to costs; (b) direct the parties to provide any agreed orders, or competing orders, to my Associate by no later than 5pm on 20 September 2024; (c) in the event there is no agreement as to costs, direct the parties to provide to my Associate by no later than 5pm on 20 September 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages; and (d) direct the parties to provide to my Associate by no later than 27 September 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages. Catchwords: EQUITY – estoppel – equitable proprietary estoppel by encouragement – whether alleged representations were made – finding that alleged representations were not made – whether representations had the requisite degree of precision – finding that representations were too ambiguous –where representations could not have allowed plaintiff to form an assumption of proprietary interest – whether plaintiff suffered detriment – where plaintiff would be in the same position had the representations not been made – where detriment suffered would be out of proportion to representation made – plaintiff's claim dismissed FAMILY LAW – claim by carer against estate of deceased under Property (Relationships) Act 1984 (NSW) – whether parties were in a "close personal relationship" – whether parties were in a "domestic relationship" – whether plaintiff provided domestic support and personal care to the deceased for "fee and reward" – where domestic support and personal care was provided for fee or reward and did not arise out of a close personal relationship between the parties – where plaintiff received free board and lodging from deceased as well as something to do – where not just and equitable to exercise Court's discretion to make orders under s 20 – plaintiff's claim dismissed SUCCESSION – family provision claim – claim by carer under Succession Act 2006 (NSW) Ch 3 – adequacy of provision – where plaintiff lived with deceased and provided domestic support and personal care – where period of support and care provided by plaintiff to deceased in dispute – where plaintiff was not living with deceased at the time of her death – plaintiff is not an eligible person under s 57(1)(f) – where domestic support and personal care was provided for fee or reward – where there are no factors warranting – where there are no social, domestic or moral obligation on deceased to make provision for plaintiff – plaintiff's claim dismissed Legislation Cited: Property (Relationships) Act 1984 (NSW) ss 3, 5, 14 and 20 Succession Act 2006 (NSW) ss 3, 57 and 59 Cases Cited: Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727 Burgess v Moss (2010) 43 Fam LR 260; [2010] NSWCA 139 Carter v Brine [2015] SASC 204 CCL Secure Pty Ltd v Berry [2019] FCAFC 81 Dable v Peisley [2009] NSWSC 772 Delaforce v Simpson-Cook (2010) 78 NSWLR 483 Dighton v Norwood [2024] NSWSC 318 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 ET-China.com International Holdings Limited v Cheung (2021) 150 ACSR 461 Evans v Marmont (1997) 42 NSWLR 70 Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) Hayes v Marquis [2008] NSWCA 10 Kardos v Sarbutt [2006] NSWCA 11 Kazal v Thunder Studios Inc (California) [2023] FCAFC 174 Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 Layton v Martin [1986] 2 FLR 227 Lewis v Stewart (by his tutor Mayhew) [2018] NSWSC 1186 Mallet v Mallet (1984) 156 CLR 605 Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 Saliba v Tarmo [2009] NSWSC 581 Saravinovski v Saravinovska [2017] NSWCA 85 Sharpless v McKibbin [2007] NSWSC 1498 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Skarica v Toska [2014] NSWSC 34 Spata v Tumino (2018) 95 NSWLR 706 Thorner v Major [2009] 1 WLR 776; [2009] UKHL 18 Trentelman v Owners Strata Plan No 76700 (2021) 106 NSWLR 227 Waltons Stores (Interstate) v Maher (1988) 164 CLR 387 Warner v Hung, Re Bellpac Pty Ltd (recs and mgrs apptd) (in liq) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Nil Category: Principal judgment Parties: In proceedings 2021/00275570 Stephanus Van Rensburg (Plaintiff) John Adilinis (First Defendant) Stephen Leeds Cutler (Second Defendant) Stephen Raft (Third Defendant)