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Angius v Salier

Angius v Salier

Case [2019] NSWSC 184 1 March 2019

Contribution for Outgoings

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Supreme Court

New South Wales

Medium Neutral Citation: Angius v Salier & Ors [2019] NSWSC 184
Hearing dates: 18, 19 February 2019
Date of orders: 01 March 2019
Decision date: 01 March 2019
Jurisdiction: Equity - Real Property List
Before: Henry J
Decision:
(1)   In relation to the claims for relief at paragraphs 1(a), 1(b), 1(c), 1(d), 1(e) and 1(f) of the amended statement filed 17 February 2017 and the relief claimed in the cross-claim filed on 4 September 2018 (the separate questions), the plaintiff/cross-defendant pay to the first defendant/cross-claimant the sum of $19,661.42.
(2)   The plaintiff/cross-defendant, the first defendant/cross-claimant and the seventh defendant pay their own costs in relation to the hearing of the separate questions.
(3)   Dismiss the plaintiff’s application made at the hearing of the separate questions seeking leave to file the further amended statement of claim.
(4)   Order the plaintiff to pay the costs of the first defendant in relation to the plaintiff’s application made at the hearing of the separate questions seeking leave to file the further amended statement of claim.
(5)   Direct the plaintiff to serve on the first and seventh defendants by 15 March 2019 a draft of a further amended statement of claim, with any amendments to be limited to the plaintiff’s claim that he is entitled to contribution from the estate of the late Mrs Angius in respect of his payment of an assessment dated 29 May 2012 and notice of penalty dated 30 May 2012 issued by the ATO to the plaintiff and the late Mrs Angius.
(6)   Direct the first and seventh defendants to inform the plaintiff by 22 March 2019 whether they consent or object to the plaintiff being given the leave to further amend the statement of claim in the form proposed.
(7)   Stand the matter over on 29 March 2019 at 9.15am before me for the purpose of making appropriate orders in relation to any application by the plaintiff for leave to amend.

Catchwords:
EQUITY – contribution for outgoings and improvements to property – where claim brought against administrator after co-owner has passed away

ESTATES – reimbursement of funeral and burial expenses – whether twelve-person vault is “reasonable”

TRESPASS – cross-claim for mesne profits – where co-owner did not give vacant possession after undertaking to do so
PROCEDURAL – leave to file amended pleading – where pleading is deficient – where plaintiff has had multiple opportunities to re-plead in proper form
Legislation Cited: Civil Procedure Act 2005 (NSW)
Conveyancing Act 1919 (NSW)
Limitation Act 1969 (NSW)
Probate and Administration Act 1898 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Angius v Salier [2015] NSWSC 1446
Angius v Salier; Angius v Anguis [2016] NSWSC 1622
Angus v Salier; Angius v Angius [2017] NSWSC 198
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Barber v De Prima [2018] NSWSC 601
Biviano v Natoli (1998) 43 NSWLR 695
Chesterman v Mitchell (1923) 24 SR (NSW) 108
Conference & Exhibition Organisers Pty…

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 Angius v Salier

Details

AGLC: Angius v Salier [2019] NSWSC 184
Case: [2019] NSWSC 184
Decision Date: 01 March 2019

CaseChat Overview and Summary

In the matter of Angius v Salier, the respondent, Angius, sought to recover outgoings and improvements made to a property, as well as reimbursement for funeral and burial expenses, from the deceased co-owner's administrator, the appellant, Salier. Additionally, Angius pursued a cross-claim for mesne profits for the period following the co-owner's passing and prior to the property sale. The dispute came before the Supreme Court of New South Wales.

The central legal issues were whether the respondent was entitled to reimbursement for funeral and burial expenses, including the cost of a twelve-person vault, and whether the appellant should compensate the respondent for improvements made to the property and mesne profits. The court also considered whether the respondent was entitled to leave to amend his pleadings, which had been found deficient.

The court found that the twelve-person vault was reasonable, given the family circumstances, and thus the respondent was entitled to reimbursement for the expenses. Regarding the improvements, the court determined that the respondent was entitled to reimbursement for those that enhanced the property's value. However, the court dismissed the claim for mesne profits as the respondent had failed to give vacant possession as promised. The court granted leave to amend the pleadings, noting that the respondent had had multiple opportunities to re-plead correctly.

The court ordered that the appellant reimburse the respondent for funeral and burial expenses and for the improvements made to the property. The cross-claim for mesne profits was dismissed. The court allowed the respondent leave to amend his pleadings, subject to the respondent filing the amended statement of claim within a specified timeframe.

Orders