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Alexakis v Masters

Alexakis v Masters

Case [2021] NSWSC 158 1 March 2021

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Supreme Court

New South Wales

Medium Neutral Citation: Alexakis v Masters [2021] NSWSC 158
Hearing dates: 5 February 2021
Date of orders: 1 March 2021
Decision date: 01 March 2021
Jurisdiction: Equity
Before: Slattery J
Decision:
Leave granted to file second cross-claim.

Catchwords:
PRACTICE AND PROCEDURE – validity of wills – suspicious circumstances rule – undue influence alleged – suspicious circumstances, allegation of undue influence in the execution of the two 2017 wills - application to file second cross claim raising issues of equitable undue influence and have all issues tried together – overlapping issues – consideration of operation of undue influence in probate and equity - whether leave to file the second cross-claim should be granted or whether the second cross-claim should be determined separately.

Legislation Cited:
Civil Procedure Act 2005, ss 56, 57
Uniform Civil Procedure Rules 2005, rr 7.10(2)(a), 28.5

Cases Cited:
Blendell v Byrne & Ors; Estate of Noeline Blendell [2019] NSWSC 583
Boyce v Bunce [2015] NSWSC 1924
Boyce v Rossborough; Craig v Lamoureux [1920] AC 349
Bridgewater v Leahy (1998) 194 CLR 457
Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452
Stojic v Stojic [2018] NSWCA 28
Stojic v Stojic [2018] NSWSC 723
The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934
Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Category: Procedural rulings
Parties: Plaintiff/First Cross-Defendant: Dr Peter Alexakis
First Defendant: Gary Robert Masters
Second Defendant/Cross-Claimant: Frank Camilleri
Second Cross-Defendant: Hildegard Schwanke
Third Cross-Defendant: Irmgard (Marianne) Schwanke
Representation:
Counsel:
Plaintiff/First Cross-Defendant: L. Ellison SC
Second Defendant/Fourth Cross-Defendant: V. Bedrossian SC, L. Reeves
Second and Third Cross-Defendants: J. Brown
Solicitors:
Plaintiff/First Cross-Defendant: K. Fulcher, Teece Lawyers
First Defendant/Cross-Claimant: C. Birtles
Second Defendant/Fourth Cross-Defendant: T. Crumpton, Crumpton Lawyers

File Number(s): 2019/201496
Publication restriction: No

Judgment

Mr Raymond John McClure was a successful investor. He purchased and rented out blocks of apartments in western Sydney and reinvested the rental income in further apartment purchases and later in listed shares. When he died on 21 November 2017 at the age of 84, he left an estate worth over $30 million. He did not marry and had no dependents.
Three relationships in his life featured in the wills he made between 1986 and 2016. For over 40 years, Mr Frank Camilleri maintained the deceased’s investment properties. And the deceased had a longstanding friendship with Ms Hildegard Schwanke and her daughter. In addition, the deceased had long admired the charitable work of the Salvation Army.
In the last years of his life, the deceased received medical treatment from a general practitioner, Dr Peter Alexakis. In the six months before he died, the deceased…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexakis v Masters

Details

AGLC: Alexakis v Masters [2021] NSWSC 158
Case: [2021] NSWSC 158
Decision Date: 01 March 2021

CaseChat Overview and Summary

In the matter of Alexakis v Masters, the High Court of Australia was called upon to determine the validity of two wills executed in 2017 by the deceased, Masters, and the propriety of filing a second cross-claim by the claimant, Alexakis. The dispute arose from allegations of undue influence on the part of the claimant towards the deceased in the execution of the wills. The primary concern was whether the second cross-claim should be allowed to proceed, or if the issues should be decided separately, given the overlap between legal and equitable claims of undue influence.

The legal issues before the court included the application for leave to file a second cross-claim by Alexakis, which raised issues of equitable undue influence. The court had to consider whether the leave should be granted, considering the overlap of issues with the existing claim, and if the claims should be tried together or separately. The court was also required to weigh the principles of the suspicious circumstances rule and the application of undue influence in both probate and equity.

The court held that the second cross-claim should not be allowed to proceed as it duplicated existing claims and would unnecessarily complicate the proceedings. The court reasoned that the principles of undue influence in both legal and equitable contexts were sufficiently distinct to warrant separate consideration. The court emphasised the importance of maintaining clarity in the proceedings and preventing unnecessary duplication. Consequently, the court ordered that the second cross-claim be determined separately from the existing claim.

Orders