Cassaniti v Cassaniti [2008] NSWSC 258

New South Wales Supreme Court

CITATION : Cassaniti v Cassaniti [2008] NSWSC 258

HEARING DATE(S) : 14/03/08

JUDGMENT DATE : 14 March 2008

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 14 March 2008

DECISION : See paras 56 and 58 of judgment.

CATCHWORDS : SUCCESSION - Family provision and maintenance - whether testatrix made adequate provision for applicant - no competing claims - applicant in a comfortable asset position - applicant estranged from testatrix - adequate provision for applicant in will.

LEGISLATION CITED : Family Provision Act 1982 (NSW) Conveyancing Act 1919 (NSW)

CATEGORY : Principal judgment

Singer v Berghouse (1994) 181 CLR 201 CASES CITED : Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 Golosky v Golosky (New South Wales Court of Appeal, Kirby P, 5 October 1993, unreported)

Orazio Cassaniti PARTIES : v Vincenzo Cassaniti & 3 Ors

FILE NUMBER(S) : SC 4509/06

Plaintiff: J Darvall COUNSEL : 1st & 2nd Defendants: R D Marshall 3rd & 4th Defendants: N/A

Plaintiff: Anthony Scarcella, Lawyer SOLICITORS : 1st Defendant: N/A 2nd Defendant: Patey & Murphy Solicitors

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION FPA RUNNING LIST

WHITE J

Friday, 14 March 2008

4509/06 Orazio Cassaniti v Vincenzo Cassaniti & 3 Ors JUDGMENT 1 HIS HONOUR: There are two applications before the Court. The first is an application under s 7 of the Family Provision Act 1982 (NSW) for an order that provision be made out of the estate or notional estate of the late Maria Cassaniti. She died on 11 March 2005. The second application, which is not the subject of any contest, is for the appointment of trustees for the sale of land in Amy Street, Campsie. That land was formerly the property of Mr Francesco Cassaniti, who died in April 1979. 2 The plaintiff is the third son of Francesco and Maria Cassaniti. The defendants are his siblings, namely, Angelo, Vincenzo, Antonio and Maria. 3 In the events which have happened, the plaintiff and his siblings are now the registered proprietors of the property at Amy Street, Campsie. Prior to her death, their mother had a life estate in the property. 4 The first and second defendants, namely Vincenzo and Antonio Cassaniti, consent to the application under s 66G of the Conveyancing Act 1919 (NSW). The other defendants have been served with the further amended summons in which orders for the appointment of trustees for sale were sought. They have not appeared on the hearing, although they had notice of it. 5 There is nothing in the evidence adduced on this application to suggest there could be any answer to the claim for the appointment of trustees for sale in respect of that property. In due course I will make those orders.