Geoghegan v Szelid [2011] NSWSC 1440

Supreme Court New South Wales

Medium Neutral Citation: Geoghegan v Szelid [2011] NSWSC 1440 Hearing dates: 24 & 25 November 2011 Decision date: 19 December 2011 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Having found that the Plaintiff is an eligible person, that there are factors warranting the making of the application and that the provision made for him in the Will of the deceased is inadequate, order that the Plaintiff receive, a capital sum that equates to 15 per cent of the net value of the deceased's estate. (b) The capital sum be provided by way of a protective trust. (c) The Cross-Summons will be dismissed. (d) If the parties are unable to agree, I shall determine any issue as to costs. (d) The parties are to bring in short minutes that reflect these reasons. If agreement is not reached on the terms of the orders, I shall hear further argument. Catchwords: Proceedings, commenced by the former husband of the deceased for a family provision order under Chapter 3 of the Succession Act 2006 - Also alleged to be a person with whom the deceased was living in a close personal relationship at the time of the deceased's death, as well as a person who was, at any particular time, wholly or partly dependent on the deceased, and who was, at that particular time, or at any other time, a member of the household of which the deceased person was a member - Plaintiff also asserts he was in a de facto relationship with the deceased at the time of the deceased's death - Defendants named in the Summons are children of the deceased by prior marriage and the persons to whom Probate of the deceased's Will was granted - They oppose the application of the Plaintiff for a family provision order Legislation Cited: Civil Procedure Act 2005 Family Provision Act 1982 Interpretation Act 1987 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Supreme Court Practice Note SC Eq 7 - Family Provision Cases Cited: Allardice, In re, Allardice v Allardice (1909) 29 NZLR 959 Barlevy v Nadolski [2011] NSWSC 129 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Brown v Faggoter [1998] NSWCA 44 Churton v Christian (1988) 13 NSWLR 241 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Devereaux-Warnes v Hall (No 3) [2007] WASCA 235; (2007) 35 WAR 127 Dion v Rieser [2010] NSWSC 50 Diver v Neal [2009] NSWCA 54 (also (2009) 2ASTLR 89) Dridi v Fillmore [2001] NSWSC 319 Evans v Levy [2011] NSWCA 125 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) [2010] VSCA 195 Fulop Deceased, Re (1987) 8 NSWLR 679 Gaulit v Bunker [2010] FamCA 232 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hampson v Hampson [2010] NSWCA 359 Hayes v Marquis [2008] NSWCA 10 Hughes v Charlton [2008] NSWSC 467 Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 McCosker v McCosker (1957) 97 CLR 566 Marsh-Johnson v Hillcoat [2008] NSWSC 1337 Mayfield v Lloyd-Williams [2004] NSWSC 419 Palaganio v Mankarios [2011] NSWSC 61 Penfold v Perpetual Trustee [2002] NSWSC 648 Permanent Trustee Company v Fraser (1995) 36 NSWLR 24 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Popescu v Borun [2011] NSWSC 1532 Porthouse v Bridge [2007] NSWSC 686 Przewoznik v Scott [2005] NSWSC 74 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Richardson v Kidd [2002] NSWSC 306 Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100 Scragg v Scott [2006] NZFLR 1076 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Ye v Fung [2006] NSWSC 243 Texts Cited: The Second Reading Speech (Legislative Assembly, (Hansard) 26 May 1999, p 535) Category: Principal judgment Parties: Carew Leo Geoghegan (Plaintiff) Steven Zoltan Szelid (first Defendant) Joan Gabriele Szelid (second Defendant) Representation: Counsel: Mr P Strasser (Plaintiff) Mr L Ellison SC (Defendants) Solicitors: Milne Berry Berger & Freedman (Plaintiff) MCW Lawyers (Defendants) File Number(s): 2011/85183