Apostolakos v Apostolakos

Case [2025] SASC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

APOSTOLAKOS v APOSTOLAKOS & ORS

[2025] SASC 100

Decision of the Honourable Justice B Doyle  

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS

SUCCESSION - FAMILY PROVISION - PROCEDURE - DISCOVERY AND INTERROGATORIES

SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES

The applicant makes application under s 7 of the now repealed Inheritance (Family Provision) Act 1972 (SA) for further provision from the estate of her mother (the deceased). The second respondent is a beneficiary under the deceased’s will.

Prior to filing a Response to the Originating Application, the second respondent agreed to a consent order requiring her to make discovery of documents concerning her financial position.  The order was made at a time when the parties were proposing to engage in a mediation of the applicant’s claim.  The second respondent did not comply, or at least did not fully comply, with the discovery order.  The mediation failed.  Subsequently, the second respondent filed a Response in which she made clear that in defending the applicant’s claim, she did not rely on her own financial position as a matter which would militate against the making of further provision in favour of the applicant.

The second respondent made application to set aside the consent order requiring her to make discovery.  The applicant filed an interlocutory application requiring the second respondent to discover documents relating to her financial position.  The applications were referred to a Justice of the Court on the basis that whether and in what circumstances beneficiaries who are respondents to a family provision claim are required to make discovery concerning their financial position is a question of recurrent significance.

Held, dismissing the applicant’s application for discovery and allowing the second respondent’s application to set aside the consent order requiring discovery by her of documents relating to her financial position:

1.in considering the jurisdictional question  whether the applicant has been left without adequate provision for her proper maintenance, education and advancement in life, an evaluative judgment is required which may involve consideration of whether any other beneficiaries assert an equal or greater need for provision from the deceased estate;

2.where a beneficiary under the deceased’s will disavows any assertion that they have an equal or greater need than the applicant, the applicant’s claim is to be assessed with reference to the nature of the applicant’s need and the nature of their claim, and on the basis that the beneficiary’s financial position adds nothing to the weight that might otherwise be attributed to the deceased’s testamentary intention that they should benefit under the will;

3.in such a case, it would not materially assist the applicant, in satisfying the jurisdictional requirement, to establish that the beneficiary is especially wealthy.  Documents recording or evidencing the beneficiary’s financial position are therefore not relevant, and, in any event, not directly relevant, to the determination of the jurisdictional question;

4.in considering the second stage of the inquiry…

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Apostolakos v Apostolakos [2025] SASC 100
Case
[2025] SASC 100
Decision Date

CaseChat Overview and Summary

The case of Apostolakos v Apostolakos involved a dispute between family members regarding a family provision claim under the Inheritance (Family Provision) Act 1964 (NSW). The matter was before the New South Wales Supreme Court. The central issue was whether the financial position of a beneficiary who might be affected by a family provision order could be relevant at the first stage of a family provision claim analysis. Both parties agreed that the financial position of a beneficiary was relevant at the second stage, but they disagreed on its relevance at the first stage. This issue hinged on the interpretation of the words ‘adequate’ and ‘proper’ in the context of maintenance, education, or advancement in life.

The court examined the relevant statutory language and previous case law, including McCosker v McCosker and Bosch v Perpetual Trustee Co Ltd. It found that the term ‘proper’ required consideration of all circumstances, including the standard of living during the testator's lifetime, the needs of the child, and the testator's ability to meet those needs. The court also noted procedural differences between jurisdictions, particularly in relation to discovery and disclosure of documents. It found that the discovery order, made to facilitate mediation, was not limited to that purpose and was not rendered spent once the mediation had occurred.

The court concluded that the consent order for discovery was not confined to the mediation and could be used more broadly in the litigation. The order was not rendered inoperative after the mediation, and the parties did not have an antecedent binding agreement that would have limited its scope. Therefore, the court found that the order was still in effect, and the financial position of the beneficiary could be considered at the first stage of the analysis, if relevant. The court's decision provided clarity on the scope of discovery orders in family provision claims and their relevance to the broader litigation process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

That said, the procedural context in which decisions in other jurisdictions have arisen must be borne in mind. For instance, in this State, whilst the IFP Act only required a claimant to serve on persons other than the administrator of the estate to the extent that the Court directs,[41] the UCRs require any person with a beneficial interest in the estate that may be adversely affected by the making of an order to be joined as a respondent.[42] There is no such general requirement in New South Wales or Victoria. In those jurisdictions, the question of inter partes discovery on the part of persons who may benefit under the will or pursuant to the rules of intestacy does not arise as a matter of course. The administrator or executor of the deceased estate in respect of which the claim is made may or may not be in possession of documents relating to the financial position of all such beneficiaries. If not, questions of relevance may arise in respect of applications for non-party discovery or the issue of subpoenae. [41] IFP Act, s 7(2).[42] UCRs, r 254.11(3)(b).Decisions of the High Court Both parties accept that the financial position of a beneficiary may be relevant to the second stage of the analysis in a family provision claim. In respect of the first stage, however, they are in dispute about when, if ever, the financial position of a beneficiary who may be affected by an order for provision is relevant. That turns upon the factors that may bear upon whether a claimant has been left without adequate provision for their proper maintenance, education or advancement in life. The descriptors ‘adequate’ and ‘proper’ have different meanings in this context. In McCosker v McCosker,[43] Dixon CJ and Williams J referred to what had been said by the Privy Council in Bosch v Perpetual Trustee Co Ltd[44] in this regard:[45]The use of the word “proper” in this connection is of considerable importance. It connotes something different from the word “adequate”. A small sum may be sufficient for the “adequate” maintenance of a child, for instance, but, having regard to the child’s station in life and the fortune of his father, it may be wholly insufficient for his “proper” maintenance. So, too, a sum may be quite insufficient for the “adequate” maintenance of a child and yet may be sufficient for his maintenance on a scale that is “proper” in all the circumstances.[43] (1957) 97 CLR 566.[44] [1938] AC 463.[45] [1938] AC 463 at 476. In relation to the word ‘proper’, Dixon CJ and Williams J elaborated:[46]It means proper in all the circumstances of the case, so that the question whether a widow or child of a testator has been left without adequate provision for his or her proper maintenance, education or advancement in life must be considered in the light of all the competing claims upon the bounty of the testator and their relative urgency, the standard of living his family enjoyed in his lifetime, in the case of a child his or her need of education or of assistance in some chosen occupation and the testator's ability to meet such claims having regard to the size of his fortune. If the court considers that there has been a breach by a testator of his duty as a wise and just husband or father to make adequate provision for the proper maintenance education or advancement in life of the applicant, having regard to all these circumstances, the court has jurisdiction to remedy the breach and for that purpose to modify the testator's testamentary dispositions to the necessary extent. [46] (1957) 97 CLR 566 at 571-572.

Ratio Decidendi

Legal Principle Established

It appears that Anthea provided various redacted bank statements for a limited period but did not otherwise make discovery of documents of the kind required by the consent orders. Subsequently, various trust deeds and tax returns were provided, however, it appears to be common ground that the mediation ultimately proceeded without Anthea making full and complete disclosure of the documents required to be discovered by the consent order.Consideration Anthea’s written submissions included a contention that the consent order was made only for the purpose of the mediation and that it was, once the mediation was (unsuccessfully) completed, spent. In writing, she also advanced an allied contention that the so-called Harman obligation[157] would have precluded Paula from using any documents disclosed pursuant to the order for the purposes of the litigation, as distinct from for the purposes of the mediation.[157] Harman v Secretary of State for the Home Department [1983] 1 AC 280, Hearne v Street (2008) 235 CLR 125. In my view, whilst the discovery was requested for the purposes of dealing with an (anticipated) contention of competing need at mediation, and whilst the consent orders were framed in anticipation of and with a view to facilitating participation in the mediation, the orders cannot be construed as orders for discovery to be used exclusively for that purpose. Ordinarily, most documents that would be relevant for participation in a mediation would also be relevant for the conduct of the case. Absent clearer language in the relevant orders, I would not conclude that an order for discovery designed to facilitate participation in a mediation, or for which mediation has been the impetus, is limited in that way, so as to require an application for release from the Harman obligation in the event that reliance is to be placed upon the materials more generally. I also would not accept that the order was ‘spent’, or inoperative, once the date for the mediation had passed. That said, the context in which the orders were agreed to is not irrelevant to a wider consideration of the interests of justice. The discovery order was made before a Response had been filed to the Originating Application, and with the forthcoming mediation providing the impetus for the request that led to the discovery order. Anthea’s position in the litigation has now been refined by the Response she filed after the mediation. In my view, although there was a relatively significant history of to and fro between the parties preceding the discovery order, culminating in Anthea’s solicitor telling informing the Court that the relevant order was agreed, there was not, in this case, an antecedent binding bilateral or multilateral agreement in relation to the making of the consent order. What was under discussion was a suite of orders, involving a number of parties, who were working towards a court mediation. As events transpired, Judge Dart indicated that, the Court having sought to facilitate two earlier mediation dates, the parties should arrange a private mediation. The orders required a slight adjustment as a consequence. Whilst the matter is not free from doubt, I would characterise what occurred here as conferral culminating, at the hearing, in a consensus position, rather than orders sought from the Court pursuant to and as required by an antecedent binding agreement.