Gebalski v Paraskevopoulos [2001] NSWSC 1012

New South Wales Supreme Court

CITATION : Gebalski v Paraskevopoulos [2001] NSWSC 1012 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 2294/01 HEARING DATE(S) : 07/11/01 JUDGMENT DATE : 7 November 2001

PARTIES : Richard Gebalski v Popi Paraskevopoulos JUDGMENT OF : Master Macready at 1

COUNSEL : Mr Enright for plaintiff Mr P.T. Russell for defendant SOLICITORS : Jenny Bull & Company for plaintiff Coustas & Co for defendant CATCHWORDS : Family Provision. Application by son suffering from HIV who is nearly blind. Estate left to deceased's neighbours. - Order for legacy in favour of son. DECISION : Paragraphs 36 and 37.

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1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Henrietta Gebalski who died on 1 November 2000. The deceased's husband predeceased her, dying on 8 August 2000. The deceased was survived by her son, who is the plaintiff in these proceedings. 2 Under her will, which was made on 21 July 1995, the deceased left her estate to her husband but, in the event of him not surviving for thirty days - which, of course, happened - she appointed the defendant executor and gave the defendant and her husband the whole of her estate. The defendant and her husband were next-door neighbours of the deceased who had known the deceased for some years. 3 The estate consists of the following assets: Bank accounts $ 43,700 Property at 6 Edward Street, Bankstown $310,000 NRMA shares $ 1,344 Total $354,844 4 There are debts of the deceased amounting to $7,801, leaving a balance of $347,043. From this has been deducted the sum of $10,000 which was the result of an interim award made in favour of the plaintiff in September of this year. 5 There have been substantial costs incurred in the preparation of this matter. The plaintiff's costs to date amount to $45,833. The defendant's costs are $37,600, a total of $83,433. There is thus at present a likely distributable estate of $263,610. 6 It is necessary to deal with a little of the family history. The deceased's father was born in 1921 in Poland and his mother was born in Belarus in 1926. They married in 1946 and migrated from Germany to Australia in 1947. The plaintiff was born on 27 November 1950 and he completed the higher school certificate in 1968 at St Patrick's College, Strathfield. He studied for several years at the Conservatorium of Music, but did not graduate. 7 In 1970 he left home. At that stage there was a rift in the relationship between himself and his father relating probably to his homosexuality. It was in 1976 that the plaintiff went overseas and he received a letter from his father that prompted a restoration of the relationship between the plaintiff and his father. There had always been a cordial relationship, according to the plaintiff, between himself and his mother . 8 Over the period from when he left home until about 1970, the plaintiff had a number of different jobs, generally in employment in the hospitality industry doing bar work, management, et cetera. 9 His father had a heart attack in 1986 and then retired from work. Also in that year, the plaintiff was diagnosed as HIV positive and commenced to suffer from AIDS. In 1990 he got to the point where he had to stop work because of his illness and he was provided with a Housing Commission flat. From 1992 to 1993 the plaintiff had become totally blind in the left eye and he had retinitis in the right eye, which has caused gradual blindness. In October 1993 he was admitted to the Royal Prince Alfred Hospital for his illness and was unconscious for some time. In December he was discharged from Prince Alfred and subsequently recovered. In March 1995 the plaintiff was readmitted to Royal Prince Alfred Hospital with an HIV related illness. 10 On 21 July 1995 wills were made by the deceased and also by the plaintiff's father in similar terms. In 1996 the plaintiff had further eye surgery and, by this stage, was completely blind in the left eye. 11 On 8 August 2000 the plaintiff's father died. The deceased herself died on 1 November 2000. The plaintiff moved into his specialist accommodation in Bobby Goldsmith House, which is run for people with disabilities such as those from which he suffers, in October last year. 12 Probate was granted in March this year and the summons filed in April within time. An interim order, which was made by me, was made on 6 September this year and that amount paid on 4 October. 13 In applications under the Family Provision Act, the High Court has in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage approach that a court must take. At p 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life'? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and 'proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.