Sloboda v Crawford [2018] NSWSC 483

Supreme Court New South Wales

Medium Neutral Citation: Sloboda v Crawford [2018] NSWSC 483 Hearing dates: 16, 17 April 2018 Date of orders: 17 April 2018 Decision date: 17 April 2018 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Summons dismissed; Declaration of beneficial ownership made Catchwords: SUCCESSION — Family provision and maintenance — Circumstances precluding relief — Claim by 64-year-old son in small estate — Sole beneficiary paid for house which was only asset of the estate Legislation Cited: Duties Act 1997 (NSW) Succession Act 2006 (NSW) Cases Cited: Camernik v Reholc [2012] NSWSC 1537 Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Verzar v Verzar [2014] NSWCA 45 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123, (2011) 297 ALR 56 West v Mann [2013] NSWSC 1852 Category: Principal judgment Parties: Andrew William Sloboda (Plaintiff/Cross-Defendant) Michael Crawford (Defendant/Cross-Claimant) Representation: Counsel: L Ellison SC J E Armfield

Solicitors: Marsdens (Plaintiff/Cross-Defendant) Dignan & Hanrahan (Defendant/Cross-Claimant) File Number(s): 2016/349424 Publication restriction: No

EX TEMPORE Judgment (REVISED) 1. These proceedings concern the estate of the late May Sloboda. Without disrespect, I shall refer to the parties and others by their given names. 2. The plaintiff, Andrew Sloboda, and the defendant, Michael Crawford, are two of May's now adult children. May's estate is small, comprising a modest house at St Andrew's ("Number 74"). By a will made on 20 October 2005 (the "Will"), May left her entire estate to Michael. Andrew seeks provision from May's estate under s 59 of the Succession Act 2006 (NSW) (the "Act"). 3. Michael has filed a cross-claim for a declaration that Number 74 is beneficially his and therefore forms no part of May's estate. There was no dispute that Michael paid for Number 74. There was also no dispute that Number 74 was originally in the name of another brother, John, who subsequently transferred it to May. 4. The essential factual dispute was whether May and her late husband, Marion, had repaid Michael what he had paid for Number 74. Andrew's case was that they had. Michael denied he had ever been repaid for Number 74. 5. Andrew's case relied only on the testimony from him and his ex-wife, Maureen, as to what they say they had been told by May. The Court is not satisfied on the balance of probabilities that Michael was ever paid for Number 74 by Marion and May. On the contrary, the Court is satisfied that the Will was the means by which May intended to return Number 74 to Michael as its "true" owner. 6. Both Michael and Andrew are in poor financial circumstances. However, in this case where it is a small estate and Michael paid for what is the estate's sole asset, the Court in the exercise of its discretion will not make an order for additional provision for Andrew, notwithstanding that the Will does not make adequate provision for his maintenance and advancement in life. 7. If it were necessary to decide, the Court would also find that Michael has at all times been the beneficial owner of Number 74.