William Bkassini v Sonya Sarkis [2017] NSWSC 1487

Supreme Court New South Wales

Medium Neutral Citation: William Bkassini v Sonya Sarkis [2017] NSWSC 1487 Hearing dates: 1-5 May 2017; final written submissions delivered on 28 June 2017. Decision date: 01 November 2017 Jurisdiction: Equity Before: Robb J Decision: Refer to paragraphs 417 and 418. Catchwords: SUCCESSION — Family provision — Application for family provision order — Application made out of time — Whether leave to make application out of time should be granted — Where deceased appointed daughter as trustee of discretionary trust — Where deceased executed a memorandum of wishes instructing daughter to pay income from trust to her father — Where daughter paid income to father for eight years — Where father remarried and daughter ceased making payments — Where father failed to lodge family provision application for a further two and a half years — Whether father can show sufficient cause.

SUCCESSION — Family provision — Application for family provision order — Where deceased left half interest in two properties — Where plaintiff was the husband of the deceased and resided in one of the properties — Whether plaintiff should be allowed to continue to reside in one of the properties — What orders should be made.

REAL PROPERTY — Tenants in common — Exclusion — Whether plaintiff excluded defendant from property — Whether defendant entitled to occupation fee or mesne profits — Where plaintiff changed locks — Where defendant had interest in property as trustee of testamentary trust. Legislation Cited: Family Provision Act 1982 (NSW) ss 7, 9, 16, 24. Cases Cited: Biviano v Natoli (1998) 43 NSWLR 695 Callow v Rupchev [2009] NSWCA 148 Dimic v Djekovic [2014] NSWSC 1502 Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; 209 CLR 95 Fischer v Nemeske Pty Ltd [2015] NSWCA 6 Hedman v Frazer [2013] NSWSC 1915 Jacobs v Seward (1872) 5 LR HL 464 John v John [2010] NSWSC 937 Luciano v Rosenblum (1985) 2 NSWLR 65 McEvoy v McEvoy [2012] NSWSC 1494 McKay v McKay [2008] NSWSC 177 Penninger v Penninger [2017] NSWSC 892 Rock Bottom Fashion Market Pty Ltd (In liq) v H R & C E Griffiths Pty Ltd (unreported, Queensland Court of Appeal, 6 March 1998) Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 State of New South Wales v Koumdjiev [2005] NSWCA 247 Young v Queensland Trustees Ltd (1956) 99 CLR 560 at 566; [1956] HCA 51 Texts Cited: JD Heydon, M Leeming and P Turner, Meagher, Gummow and Lehane's: Equity: Doctrines & Remedies (Lexis, 5 ed, 2014). JD Heydon, M Leeming, Jacob's Law of Trusts in Australia (Lexis, 8 ed, 206). Category: Principal judgment Parties: William Bkassini (plaintiff) Sonya Sarkis (defendant) Representation: Counsel: G McNally SC (plaintiff) CD Wood (defendant)