Alessandra Hart v Gerard John Basha [2024] NSWSC 1441

Supreme Court New South Wales

Medium Neutral Citation: Alessandra Hart v Gerard John Basha [2024] NSWSC 1441 Hearing dates: 3 June, 1 and 2 August 2024 Date of orders: 13 November 2024 Decision date: 13 November 2024 Jurisdiction: Equity - Real Property List Before: Williams J Decision: See orders at [225]. Catchwords: ESTOPPEL – Promissory estoppel – Where plaintiff and her deceased former husband separated and divorced in 1992 – Where plaintiff claims to have relied to her detriment on representations allegedly made by the deceased in conversations over many years to the effect that he would leave the whole or the bulk of his estate to her in his will if she did not pursue a property settlement – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased's last will made no provision for the plaintiff – Held that the Court is bound by authority that the doctrine of promissory estoppel operates as a restraint on the enforcement of legal rights and does not operate as a source of an obligation for the deceased to provide for the plaintiff in his will – Held that the plaintiff failed to prove most of the alleged representations, and failed to prove that she relied to her detriment on those representations which were proved – Promissory estoppel claim dismissed. SUCCESSION – Family provision – Claim by plaintiff for provision out of the estate of her deceased former husband – Where plaintiff made significant financial and non-financial contributions to the assets that were the genesis of the assets comprising the deceased's estate – Where the plaintiff sought unsuccessfully for 10 years to negotiate a final property settlement with the deceased, but did not commence property settlement proceedings – Where the deceased controlled the assets and funds generated during their marriage, and refused to disclose relevant financial information and threatened the plaintiff with violence during the property settlement negotiations – Where the deceased failed to pay the plaintiff even a half share of the net sale proceeds of their jointly owned assets following their separation and divorce – Where the plaintiff is aged 82 years, owns no real property, has no superannuation, and is forced to live frugally due to her lack of financial resources – Where the deceased made no provision for his former wife in his will – Where an order for provision will reduce the benefits to paid to named beneficiaries – Held: There are factors warranting the plaintiff's application for provision, and the plaintiff has a superior claim on the deceased's estate than the beneficiaries named in the will – Order for ­provision in favour of the plaintiff in a lump sum of $600,000. Legislation Cited: Civil Procedure Act 2005 (NSW) s 100 Succession Act 2006 (NSW) ss 57, 58, 59, 60, 61 Cases Cited: Ashton v Pratt (2015) 88 NSWLR 281; [2015] NSWCA 12 Blendell v Byrne [2019] NSWSC 583 Chant v Curcuruto [2021] NSWSC 751 Curtis v Curtis [2024] NSWCA 136 Eggins v Robinson [2000] NSWCA 61 Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 Fiorenza v Fiorenza [2024] NSWSC 549 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Frank v Angell [2024] NSWCA 264 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 270 Lodin v Lodin [2017] NSWCA 327 Megerditchian v Khatchadourian [2020] NSWCA 229 Nock v Maddern [2018] NSWCA 239 Olsen v Olsen (2019) 101 NSWLR 225; [2019] NSWCA 278 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Re Estate of Legler [2024] NSWSC 726 Re Fulop Deceased (1987) 8 NSWLR 679 Rogic v Samaan [2018] NSWSC 1464 Saleh v Romanous (2010) 79 NSWLR 453; [2010] NSWCA 274 Sammut v Kleemann [2012] NSWSC 1030 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Slade v Brose [2024] NSWCA 197 Smith v Moore [2020] NSWSC 1446 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sun v Chapman [2022] NSWCA 132 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 Warner v Hung (2011) 297 ALR 56; [2011] FCA 1123 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: N/A Category: Principal judgment Parties: Alessandra Hart (Plaintiff) Gerard John Basha (Defendant) Representation: Counsel: Mr N Kirby (Plaintiff) Mr C Birtles (Defendant)