Smoje v Forrester [2017] NSWCA 308

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Smoje v Forrester [2017] NSWCA 308 Hearing dates: 24 August 2017 Date of orders: 04 December 2017 Decision date: 04 December 2017 Before: Basten JA at [1]; Macfarlan JA at [2]; Meagher JA at [3] Decision: 1. Appeal allowed. 2. Set aside orders 1, 2, 3 and 4 made on 30 May 2017 and in place thereof: (a) dismiss the plaintiff's summons; (b) the defendant's costs of the proceedings be paid out of the estate of the deceased (Miryana Smoje) on the indemnity basis. 3. Appellant's costs of the appeal be paid out of the deceased's estate on the indemnity basis. 4. The amount of $750,000 paid into court by the defendant be paid to the defendant's solicitors or, if security was provided in lieu of that payment, that such security be delivered up to the defendant's solicitors. Catchwords: SUCCESSION – family provision and maintenance – where deceased terminally ill and living in a hotel room – where respondent visited the deceased to provide her with care in the months preceding her death occasionally staying overnight – whether respondent and deceased were "living together" in a "close personal relationship" at the time of her death

EVIDENCE – expert evidence – where primary judge made findings as to mental disability suffered by respondent – where no expert evidence as to existence of any such disability and how it might affect respondent's behaviour or evidence – whether findings, including as to credibility, available Legislation Cited: Succession Act 2006 (NSW), ss 57, 59 Cases Cited: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 Category: Principal judgment Parties: Neven Smoje (Appellant) David Forrester (Respondent) Representation: Counsel: