Hildebrandt v Papakonstantinou [2024] NSWSC 1181

Supreme Court New South Wales

Medium Neutral Citation: Hildebrandt v Papakonstantinou [2024] NSWSC 1181 Hearing dates: 19-21 August 2024 Date of orders: 19 September 2024 Decision date: 19 September 2024 Jurisdiction: Equity - Real Property List Before: Williams J Decision: Proceedings dismissed. Catchwords: ESTOPPEL – Proprietary estoppel – Where parents made promises over many years to give one half of rural property to each of their two children, a daughter and a son – Where daughter, together with her husband and children, moved from Canada to live on the property – Where each adult child has moved onto and made substantial improvements to their promised half of the property – Whether the promises induced the daughter and her husband to expect and assume that she, or they, would receive half of the property as an inheritance following the death of both of the parents, or at some earlier time – Where a development application for subdivision of the property into the two halves was rejected – Where the property passed to the mother on the death of the father by right of survivorship – Where the mother remains alive and is the sole registered proprietor of the property – Where the mother's last will gives the property to her daughter and son as tenants in common in shares reflecting the value of the half of the property that each of them has developed and improved as a proportion of the value of the whole of the property, as determined by a registered valuer – Where mother has undertaken not to revoke or vary that will, and not to make a new will – Whether parents resiled from promises – If so, whether detriment to daughter and son-in-law – Held: There has been no resiling from the promises, which induced daughter and her husband to expect and assume that she, or they, would receive the southern half of the property by way of inheritance following the death of both of the parents. SUCCESSION – Family provision – Claim by daughter for provision out of the estate of her late father – Where only material asset of father at time of his death was the property that was the subject of the promises – Where father, jointly with mother, made significant contributions during his lifetime to his daughter's maintenance and advancement in life – Where further provision will be made for the daughter by the gift in her mother's will of an interest in the property, consistently with the promises made by the parents to their daughter and son over many years – Where daughter's evidence of financial position deficient – Held: Claim dismissed. Legislation Cited: Civil Procedure Act 2005 (NSW) s 100 Real Property Act 1900 (NSW) s 74O Succession Act 2006 (NSW) ss 57(1)(c), 59, 60 Trustee Act 1925 (NSW) ss 71, 76 78 Cases Cited: Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176 Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 Blendell v Blendell [2020] NSWCA 154 DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 Donis v Donis (2007) 19 VR 577; [2007] VSCA 89 Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Megerditchian v Khatchadourian [2020] NSWCA 229 Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Nominal Defendant v Cordin [2017] NSWCA 6 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Slade v Brose [2024] NSWCA 197 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429; [1988] HCA 7 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: N/A Category: Principal judgment Parties: Georgina Hildebrandt (First Plaintiff) Kit Hildebrandt (Second Plaintiff) The Estate of Hrisoulis Papakonstantinou, formerly Hrisoulis Papakonstantinou (between 3 April and 14 June 2023) (First Defendant) Markela Papakonstantinou (Second Defendant) Arthur Papakonstantinou (Third Defendant) Representation: Counsel: Mr A J Grant (Plaintiffs) Mr T Alexis SC with Mr S Speirs (First and Second Defendants) Mr S J Philips (Third Defendant)