Axiak v Axiak [2009] NSWSC 1319

New South Wales Supreme Court

CITATION : Axiak v Axiak [2009] NSWSC 1319 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 30/11/09

JUDGMENT DATE : 2 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Macready AsJ at 1

EX TEMPORE JUDGMENT DATE : 2 December 2009

DECISION : Paragraph 58

CATCHWORDS : Family Provision. Application by son who was left nothing in his mother's will. - Breach in relationship with mother. Legacy awarded. No matter of principle.

PARTIES : 1044/09 Tony Axiak v Sam Axiak & Anor

FILE NUMBER(S) : SC 1044/09

Mr MK Meek SC for plaintiff COUNSEL : Mr B Skinner for defendant

SOLICITORS : Martin Collins Cumberland Frank Commercial & Litigation Lawyers Saunders and Standen Solicitors

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

ASSOCIATE JUSTICE MACREADY

WEDNESDAY 2 DECEMBER 2009

1044 of 2009 Louis Carmel Axiak and Tony Axiak v Sam Axiak and Connie Ellen Xuereb

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Antonio Axiak who died on 13 July 2007. Her husband had pre-deceased her and she was survived by her four children, two of whom are plaintiffs and two of whom are defendants. Last will of the deceased 2 This was made on 2 March 1998 and the defendants were appointed executors. The whole estate was left to them in equal shares. 3 The action by Louis Axiak has been settled on the basis that he receive a payment of $75,000. Orders have been made by consent and thus they operate as a codicil to the will of the deceased. No provision was made by the will for the plaintiffs. Assets of the estate 4 The deceased property at Schofields was estimated at $2.5 million for probate. There was cash in the estate of $33,222 and other assets in the sum of $10,487 making a total of $2,544,309. 5 Costs have been incurred; those of the plaintiff in the sum of $46,500 and the defendants, admittedly on a two day hearing basis, at $62,053; this is a total of $108,553. Family History 6 The deceased was born in April 1931 and she married her husband in September 1954. She was born in Malta. They had four children, Sam born in August 1955, Louis born in May 1956, Tony the remaining plaintiff in 1963, and Connie, one of the defendants, in June 1965. 7 In due course, after growing up, Tony married his wife Teresa 1994. In 1997 were there was an argument between Tony and Louis on the one hand and Sam and Connie on the other in the presence of their parents. This related to a demand about the children looking after the parents and I will return to that a little later. 8 As a result of that argument the deceased made her last will, to which I have referred, on 2 March 1998. In June 2000 deceased husband Frank died aged 75 years. He had been suffering from dementia for some time. 9 According to the plaintiff he reconciled with his mother in 2002 and would drop in and see her every two to three weeks. The deceased, as I mentioned, died on 13 July 2007 and probate was granted in January of the following year. 10 Tony had divorced his wife in 2005, and in 2007 he commenced a de facto relationship with Tracy Shaw. He had a property settlement with his former wife and 2008 and received $860,000. He purchased his present residence at Tennyson for a little under $1 million. He borrowed $188,180 from the Westpac Bank for this purchase and paid the balance from the proceedings of the settlement. 11 The summons in this matter was filed on 7 January 2009 in time. Eligibility 12 The plaintiff is an eligible person, being a child of the deceased. 13 In applications under the Family Provision Act the High Court in Singer v Berghouse (1994) 181 CLR 201 has set out the two stage approach that a 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. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."