Toscano v Toscano [2017] NSWSC 419

Supreme Court New South Wales

Medium Neutral Citation: Toscano v Toscano [2017] NSWSC 419 Hearing dates: 19 – 20 October 2016 Decision date: 20 April 2017 Jurisdiction: Equity Before: Robb J Decision: The court directs the parties to bring in short minutes of order to give effect to these reasons for judgment. Catchwords: PROCEDURE – Issue estoppel – Abuse of process – Consent orders – Where plaintiff claimed property was part of deceased's notional estate – Where defendant agreed to consent orders designating property as part of the deceased's notional estate in a related application for family provision orders – Whether the defendant's consenting to orders constituted an admission that the property was part of the deceased's notional estate – Where related proceedings and current proceedings were heard together with evidence in one being evidence in the other – Whether consent orders created an issue estoppel – Whether it is an abuse of process for the defendant to deny that the property is part of the deceased's notional estate.

SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Where plaintiff was the estranged son of deceased – Consideration of 'community standards' – Where deceased transferred interests in property to his other son and a daughter between one and three years before his death – Whether property should be designated as part of the deceased's notional estate – Whether deceased transferred property wholly or partly to deny or limit provision being made out of his estate – Significance of burden of evidence shifting to defendant to call evidence to dispel the appearance that deceased was partly actuated by an intention justifying designation of property as notional estate. Legislation Cited: Succession Act 2006 (NSW) s 80(2)(a). Cases Cited: Alexander v Jansson [2010] NSWCA 176 Aubrey v Kain [2014] NSWSC 15 Blair v Curran (1939) 62 CLR 464 Butler v Morris [2012] NSWSC 748 Courtney v Powell [2012] NSWSC 460 Kastrounis v Foundourakis [2012] NSWSC 264 McCosker v McCosker (1957) 97 CLR 566 O'Shane v Harbour Radio Pty Limited (2013) 85 NSWLR 698 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Stojanovski v Stojanovski [2016] NSWSC 976 Underwood v Gaudron [2014] NSWSC 1055 Wardy v Salier [2014] NSWSC 473 Watson v Foxman (1995) 49 NSWLR 315 West v Mann [2013] NSWSC 1852 Zagame v Zagame [2014] NSWSC 1302 Texts Cited: Succession Law and Practice New South Wales (Butterworths). Category: Principal judgment Parties: Victor Toscano (plaintiff) Anthony John Toscano (first defendant) Katrina Carmel Morabito (second defendant) Representation: Counsel: A Blank (plaintiff) L Ellison SC (first and second defendants)