Kastrounis v Foundouradakis [2012] NSWSC 264

Supreme Court New South Wales

Medium Neutral Citation: Kastrounis v Foundouradakis [2012] NSWSC 264 Hearing dates: 22, 23 February 2012 Decision date: 22 March 2012 Jurisdiction: Equity Division Before: Hallen AsJ Decision: (a) Having found that each Plaintiff is an eligible person, and that the provision made for him and her in the Will of the deceased is inadequate, the first Plaintiff is to receive, in addition to that provision, a lump sum of $65,000 and the second Plaintiff is to receive, in addition to that provision, a lump sum of $35,000. (b) No interest is to be paid on either lump sum if it is paid within 28 days of the making of these orders; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment. (c) The parties are to endeavour to reach agreement on the burden of costs of the proceedings, failing which the matter will be listed for further submissions. (d) Having found that the deceased's estate is insufficient for the making of the family provision order in the case of each Plaintiff, and for any order as to costs, that the Court is of the opinion should be made, the court will make a designating order designating property as notional estate for the purposes of the family provision orders to be made and, if necessary, for the purposes of an order for the Plaintiffs' costs of proceedings. (e) The burden of the provision to be made for each of the Plaintiffs and of the Plaintiffs' costs, as well as the property of each of the Defendants to be designated as notional estate, to be the subject of agreement between the Defendants, or if no agreement can be reached, to be the subject of further submissions. (f) Direct the parties to bring in short minutes of order to reflect the reasons and the proposed orders. Catchwords: SUCCESSION - FAMILY PROVISION - NOTIONAL ESTATE - Two Plaintiffs, a son and a daughter of the deceased, seek a family provision order out of the estate or notional estate of the deceased under the Succession Act 2006 - Each Plaintiff received a modest legacy out of the estate in the Will - Virtually no actual estate left thereafter - The Defendants are grandchildren of the deceased to whom the deceased's real property was transferred a few months prior to her death - Consideration identified in contract for sale not paid by them - Other consideration provided - Whether full valuable consideration given - Property subsequently sold by Defendants - Whether provision should be made for each Plaintiff and, if so, the nature of the provision to be made - Whether proceeds of sale, or other property of the Defendants, or any of them, or any other property should be designated as notional estate Legislation Cited: Family Provision Act 1982 Practice Note SC Eq 7 Property (Relationships) Act 1984 Succession Act 2006 Succession Amendment (Family Provision) Act 2008 Cases Cited: Alexander v Jansson [2010] NSWCA 176 Allardice v Allardice, In re Allardice, (1909) 29 NZLR 959 Attorney-General v Earl of Sandwich [1922] 2 KB 500 Barns v Barns [2003] HCA 9 [2005] SydLawRw 12; (2005) 27(2) Bartlett v Coomber [2008] NSWCA 100 Blore v Lang [1960] HCA 73; (1960) 104 CLR 124 Bondelmonte v Blanckensee [1989] WAR 305 Bosch v Perpetual Trustee Co Ltd [1938] AC 463 Buckland Deceased, Re [1966] VR 404 Butcher v Craig [2009] WASC 164 Cetojevic v Cetojevic [2007] NSWCA 33 Christie v Manera [2006] WASC 287 Collicoat v McMillan [1999] 3 VR 803 Collins v McGain [2003] NSWCA 190 Cooper v Dungan (1976) 50 ALJR 539 Crossman v Riedel [2004] ACTSC 127 Cunliffe v Goodman [1950] 2 KB 237 Day v Perisher Blue Pty Ltd [2005] NSWCA 110; (2005) 62 NSWLR 731 Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127 Diver v Neal [2009] NSWCA 54 Ebert v Ebert [2008] NSWSC 1206 Foley v Ellis [2008] NSWCA 288 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Galt v Compagnon (NSWSC, 24 February, 1998) Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Hawkins v Prestage (1989) 1 WAR 37 Hildebrandt v Soncini [2007] NSWSC 1227 Hinde & Hinde [2008] FamCA 24 Hughes v National Trustees, Executors and Agency Company of Australasia Ltd (1979) 143 CLR 134 Jelley v Iliffe [1980] EWCA Civ 4; [1981] 2 All ER 29 John v John [2010] NSWSC 937 Kavalee v Burbidge; Hyland v Burbidge (1998) 43 NSWLR 422 Kay v Archbold [2008] NSWSC 254 Kembrey v Cuskelly [2008] NSWSC 262 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 MacGregor v MacGregor [2003] WASC 169 (28 August 2003) Marks v Marks [2003] WASCA 297 Marriott, Re, dec'd [1968] VR 260 Mayfield v Lloyd-Williams [2004] NSWSC 419 Ogburn v Ogburn; Ogburn v Ogburn [2012] NSWSC 79 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9 Puckridge, Deceased, In the Estate of (1978) 20 SASR 72 Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201 Smith v Woodward (NSWSC, 9 September 1994, unreported) Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vaysbakh v Vaysbakh [2007] NSWSC 1223 Wade v Harding (1987) 11 NSWLR 551 Walker v Walker (NSWSC, 17 May 1996, unreported) Wilkinson (deceased), Re; Neale v Newell [1978] 1 All ER 221 Wilson v Wright (NSWSC, 25 February 1992, unreported) Texts Cited: Rosalind Croucher in "Contracts to Leave Property by Will and Family Provision" New South Wales Law Reform Commission Report 110 (2005) - Uniform Succession Laws: Family Provision Category: Principal judgment Parties: Merkoury Kastrounis (first Plaintiff) Maria De Chellis (second Plaintiff) Anna Foundouradakis (first Defendant) Connie Kerameas (second Defendant) Irene Miglis (third Defendant) Representation: Counsel: Mr J Armfield; Mr G Smith (Plaintiffs) Mr J Mitchell (Defendants) Solicitors: Russo & Partners (Plaintiffs) Econ Legal Pty Limited (Defendants) File Number(s): 2010/294303