Handley v Cipollone [2002] NSWSC 347

New South Wales Supreme Court

CITATION : Handley v Cipollone [2002] NSWSC 347 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4344/2000 HEARING DATE(S) : 18/04/2002 JUDGMENT DATE : 18 April 2002

PARTIES : EMMA HANDLEY v ROMOLO CIPOLLONE - ESTATE OF ARMANDO CERVONI JUDGMENT OF : Master Macready at 1

COUNSEL : Mr M. Willmott for plaintiff Mr M. Hilberry for defendant SOLICITORS : Eric Butler & Associates for plaintiff Autore & Associates for defendant CATCHWORDS : Family Provision. Claim by a daughter in respect of a small estate left to two of the deceased's grandchildren. Orders made in favour of the plaintiff. No matter of principle. DECISION : Paragraph 40

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

MASTER MACREADY

THURSDAY 18 APRIL 2002

4344/00 - EMMA HANDLEY v ROMOLO CIPOLLONE - ESTATE OF ARMANDO CERVONI

JUDGMENT

1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Armando Cervoni who died on 25 May 1999 aged seventy-four years. 2 The claim was brought by his only daughter. The deceased was survived by his two sons and also by his former wife from whom he had separated. His wife has been notified under the Rules and makes no claim. His two sons are aware of their right to make a claim and do not propose to do so. In these circumstances, it is unnecessary that they be served with notice under the Rules. 3 The deceased made his last will on 2 April 1997. He appointed the defendant, a friend, as Executor, and he gave the whole of his estate to two grandchildren, Marisa Rose Cervoni and Leah Maree Cervoni. The estate is a small one. 4 Its principal asset is a house at Wirra Place, Berkeley near Wollongong valued at somewhere in the area of $120,000. There is furniture worth $2,500, an unregistered car worth $250 and guns on the evidence valued at $870, a total of $123,620. 5 As with all these matters, costs intrude onto them. The plaintiff's costs are estimated at $30,000, somewhat high for a matter of this nature but probably as a result of there being a change of solicitors on the way through. The defendant's costs are estimated to be somewhere between $20,000 and $30,000. Apart from the actual assets, some of which may or may not be realised, it is obvious there will be expenses incurred in selling the house; there will be agents' fees, legal fees of somewhere between $3,000 and $5,000. Effectively, we are looking at an estate worth about $115,000 because the other matters will probably raise very little and there are these large costs which are imposed. 6 I will deal with the chronology of the matter. The deceased was born in 1926 and his daughter, the plaintiff, was born on 28 July 1950. His son Peter was born on 26 January 1952 and his son John on 17 July 1966. 7 The plaintiff married in 1961 and stayed at home for a few years before moving out and living her own life. 8 It was in March 1977 that the deceased and his wife separated. In that year, the plaintiff's first child, Joshua, was born and in 1978 the deceased and his wife were divorced. In 1979 the plaintiff's second child, Anthony, was born. 9 The plaintiff separated from her husband and in due course in 1993 she commenced a de facto relationship with Antonio Foini, and they have continued to live together to the present time. 10 The deceased's last will was made on 2 April 1997. 11 In 1998, various proceedings were commenced against a company, Tantii Pty Limited, and its directors, who include the plaintiff. These proceedings were brought by the Fair Trading Tribunal. In addition, the company has now been sued by a supplier in the District Court claiming a debt of $121,339.81. That claim is defended and there is a cross-claim brought. 12 The deceased died in May 1999. This was before what was to turn out to be a very material change in the plaintiff's circumstances. She and her company suffered a judgment of a substantial amount as a result of the Fair Trading Tribunal proceedings and she had to increase her mortgage in 1999 from about $100,000 up to $300,000. 13 Probate was granted on 27 October 2000 and the summons was filed on 25 October 2001 within the time prescribed by the Act. 14 In applications under the Family Provision Act, the High Court in Singer v Berghouse (1994) 181 CLR 201 set out the two-stage process the court must take. At page 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.