El-Zaouk v Draybi [2010] NSWSC 1001

New South Wales Supreme Court

CITATION : El-Zaouk v Draybi [2010] NSWSC 1001

HEARING DATE(S) : 3 September 2010

JUDGMENT DATE : 3 September 2010

JUDGMENT OF : Hallen AsJ

(a) Order that the Defendant's Notice of Motion filed on 20 August 2010 be dismissed. DECISION : (b) Order that the costs of the Notice of Motion be the Plaintiff's costs in the cause. (c) Order that the mediation listed on 10 September 2010 be vacated.

CATCHWORDS : FAMILY PROVISION - Practice and procedure - Application for summary dismissal of claim - Facts in dispute - Other facts incomplete - Family Provision Act 1982

Family Provision Act 1982 LEGISLATION CITED : Probate and Administration Act 1898 Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

Carey v Robson [2010] NSWCA 212 Foley v Ellis [2008] NSWCA 288 CASES CITED : Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] hca 40 Spencer v Commonwealth of Australia [2010] HCA 28 Vigolo v Bostin [2005] HCA 11 (2005) 221 CLR 191 Warren v McKnight (1996) 40 NSWLR 390

PARTIES : Ramona El-Zaouk Tony Draybi

FILE NUMBER(S) : SC 2010/116732

COUNSEL : R Wilson F Sinclair

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HALLEN AsJ

3 SEPTEMBER 2010

2010/116732 EL-ZAOUK v DRAYBI JUDGMENT 1 HIS HONOUR: The Defendant is the sole executor under the will of his father, Roumanos Draybi, deceased. He has applied by notice of motion, filed on 20 August 2010, to strike out proceedings commenced by Summons filed by the Plaintiff, who is his sister, and a daughter of the deceased, in which she seeks a family provision order and other relief under the Family Provision Act 1982 ("the Act"). 2 The deceased died on 20 February 2006 and the Plaintiff's Summons was filed on 11 May 2010. It is acknowledged that the Summons was served outside the period prescribed by the Act (18 months from the date of death). It is about 2 years and 9 months out of time. A claim to extend the time for the making of the application is sought in the Summons. 3 The affidavit in support of the Summons was filed on 23 July 2010. The only evidence that was filed in support of the notice of motion, until today, was an affidavit by the Defendant's solicitor. This morning, without objection, I granted leave to the Defendant to file in court, the Defendant's affidavit in the form of an executor's affidavit. It is clear from that affidavit that the prescribed notices to be served upon other eligible persons, have not, as yet, been served. 4 There is no dispute, that the Plaintiff is an eligible person, within the meaning of that term under s 6(1)(b) of the Act. There is also no dispute that she received nothing out of the estate under the terms of the deceased's Will, Probate of which Will was granted on 19 December 2006. 5 The Defendant's solicitor's evidence is that the estate was distributed "in about late 2007". There is some dispute about this, it being submitted that the evidence reveals that the real property of the deceased remains in the name of the Defendant as executor of the estate. 6 Assuming that the Defendant's assertion is correct, there is no evidence of any notice of distribution having been published in accordance with s 92 of the Probate and Administration Act 1898, prior to that distribution having taken place. Ms F Sinclair, counsel for the Defendant, informs me from the Bar Table that it is likely that such a notice was published. 7 The evidence reveals that the value of the estate, as disclosed in the Inventory of Property, was $700,000. There is no evidence of the present value of the estate. 8 The Summons seeks an order for provision out of the estate or notional estate of the deceased. However, I note that there is no specific property identified sought to be designated as notional estate disclosed. 9 The Plaintiff's affidavit filed in support of the Summons reveals that she is aged 51 years. She is married with 4 children, two of whom are under the age of 18 years. Her two older children attend university, but also live at home and are dependant. She and her husband own a property jointly in Auburn worth $900,000, which is subject to a mortgage of $410,000. She has personal liabilities of $10,000. Her husband owns a car ($10,000) and has superannuation ($8,000). He has liabilities of $8,400. Her husband's taxable income for the year ending 30 June 2009 is said to have been $13,999. The Plaintiff and her husband receive Centrelink payments of $1,892 per month. They have expenses said to total $3,575 per month. 10 Some, or all, of these facts may be in issue. For example, the Defendant tendered a copy of a search that reveals the property referred to in the Plaintiff's affidavit is solely owned by her. 11 I know nothing about the financial and material circumstances of the Defendant and/or of his brother, George, the only other beneficiary named in the Will of the deceased. The resources and needs of other claimants on the deceased's bounty are to be taken into account in determining a claim under the Act: Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 at [122]; Foley v Ellis [2008] NSWCA 288 at [88] and [89]; Carey v Robson [2010] NSWCA 212 at [15]. 12 The Defendant's evidence is that he paid his brother $350,000, which is said to be the value of his brother's interest in the estate. This fact may, or may not, be in issue. 13 The issues for determination in the substantive case, if it proceeds to a final hearing will be: (i) whether leave should be granted under s 16 of the Act for an extension of time for the bringing of the claim under s 7 of the Act; (ii) if leave is granted under s 16, whether, as a matter of fact, the provision made for the Plaintiff under the deceased's Will was inadequate; (iii) if the answer to (ii) is "yes", should any property be designated as notional estate; and (iv) what orders, if any, should be made for by way of provision for the Plaintiff? 14 It cannot be disputed that each of these issues will require additional facts, only some of which are revealed by the evidence filed at this time. 15 An additional issue in the proceedings is a claim, to be advanced by the Defendant, that the property owned by the deceased at the date of his death, was held in trust for the Defendant and for his brother, George. This was raised by counsel for the Defendant in submissions. 16 The Defendant's application is, in effect, one for summary dismissal. When asked the basis of that claim, rule 13.4 of the Uniform Civil Procedure Rules 2005, was relied upon. The application was said to rest upon the proposition that there is no viable grounds for the Plaintiff to contend that the time for making the claim should be extended, that the deceased failed to make adequate provision for her proper maintenance and support, and finally, that as a matter of discretion, property should be designated as notional estate. 17 In Warren v McKnight (1996) 40 NSWLR 390, the Plaintiff brought proceedings, pursuant to the Act, some ten months after the time provided for the commencement of such proceeding. Subsequent to the filing of the Plaintiff's affidavit evidence-in-chief, application was brought by the Defendant for summary dismissal of the proceedings on the basis that no reasonable cause of action had been shown. On behalf of the Plaintiff, it was argued that the Act did not contemplate the procedure for summary dismissal and that it was virtually not possible to determine that such a case was hopeless until the final hearing of the proceedings. 18 Hodgson J (as his Honour then was) did not accept that submission and held that, on the basis of the material before the court, the Plaintiff's case should be summarily dismissed. However, before making a final order, his Honour gave to the Plaintiff liberty to file supplementary material within a period of time, as it had been indicated that the Plaintiff wished to file such further material, reserving to the Defendant the opportunity to bring the matter back before him. 19 At 396, his Honour said: I do not think the Family Provision Act 1982 should be read as precluding the application of summary judgment provisions. It does operate in the context where the Supreme Court Act 1970 and the Supreme Court Rules provide for ways in which disputes can be determined and one of those ways is by summary judgment applications. I do not think that one can get from the Family Provision Act 1982 an intention to preclude the application of that rule. However, in a matter in which so much is at large, and so much subject to discretion, I would accept that it would be in rare cases that the application of the summary judgment provision would be appropriate.