Armouti v Nenes

Case [2022] ACTCA 3


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Armouti v Nenes

Citation:

[2022] ACTCA 3

Hearing Date:

3 November 2021

DecisionDate:

11 February 2022

Before:

Elkaim ACJ, Rangiah J, McWilliam AJ

Decision:

See [48]

Catchwords:

APPEAL – CIVIL LAW – FAMILY PROVISIONS ACT ­– nature of relationship – treatment as adult child – discretion – quantum

Legislation Cited:

Administration and Probate Act 1958 (Vic), ss 90, 90A, 91
Domestic Relationships Act 1994 (ACT)

Family Provision Act 1969 (ACT) ss 7, 8, 11, 22
Family Provision Act 1972 (WA), s 7
Family Provision Act 1970 (NT), s 7
Inheritance (Family Provision) Act 1972 (SA), s 6

Succession Act 2006 (NSW), s 57
Succession Act 1981 (Qld), s 41
Testator’s Family Maintenance Act 1912 (Tas), s 3A

Cases Cited:

Anasson v Phillips (Supreme Court of NSW, Young J, 4 March 1988)

Andrew v Andrew [2012] NSWCA 308; 81 NSWLR 656
Bates v Cooke [2015] NSWCA 278
Bayssari v Bazouni [2014] NSWSC 910
Blair v Blair [2004] VSCA 149; 10 VR 69
Burke v Burke (No 2) [2015] NSWCA 195
Camernik v Reholc [2012] NSWSC 1537
Crossman v Reidel [2004] ACTSC 127
Chapple v Wilcox [2014] NSWCA 392; 87 NSWLR 646
Collings v Vakas [2006] NSWSC 393
Crossman v Riedel [2004] ACTSC 127
Evans v Levy [2011] NSWCA 125
Evans v Levy [2011] NSWCA 125
Ford v Simes [2009] NSWCA 351
Foye v Foye [2008] NSWSC 1305
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grey v Harrison [1997] 2 VR 359
Henry v Hancock [2016] NSWSC 71
Hertzberg v Hertzberg [2003] NSWCA 311
Hogan v Hogan [2013] NSWSC 1405
House v The King (1936) 55 CLR 499
Ilott v The Blue Cross [2017] 2 WLR 979; 4 All ER 545
In the Estate of the late Anthony Marras [2014] NSWSC 915
Jones (a pseudonym) v Smith (a pseudonym) [2016] VSCA 178
Kohari v Snow [2013] NSWSC 452
Mayfield v Lloyd-Williams [2004] NSWSC 419
McCarthy v McCarthy [2010] NSWCA 103
McCosker v McCosker (1957) 97 CLR 566
Nenes v Armouti [2021] ACTSC 53
Oldereid v Chan [2013] NSWSC 434
Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24
Phillips v James [2014] NSWCA 4; 85 NSWLR 619
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9
Roberts v Roberts (1992) 9 WAR 549
Salmon v Osmond [2015] NSWCA 42
Sgro v Thompson [2017] NSWCA 326
Singer v Berghouse (1994) 181 CLR 201
Singh v Singh [2015] NSWSC 1457
Slack v Rogan; Palffy v Rogan [2013] NSWSC 522; 85 NSWLR 253
Starr v Miller [2021] NSWSC 426
Steinmetz v Shannon [2019] NSWCA 114; 99 NSWLR 687
Stott v Cook (1960) 33 ALJR 447
Vigolo v Bostin [2005] HCA 11; 221 CLR 191

Watton v MacTaggart [2020] NSWSC 1233

Parties:

Evgenia Armouti and Evgenia Giannarou as administrators of the estate of the late Constantinos Armoutis ( Appellants)

Stella Nenes (…

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Armouti v Nenes [2022] ACTCA 3
Case
[2022] ACTCA 3
Decision Date

CaseChat Overview and Summary

The appeal concerned the estate of the late Constantinos Armoutis, with the administrators of the estate (Appellants) appealing an order made by the ACT Supreme Court in favour of Michael Nenes (First Respondent) and Stella Nenes (Second Respondent). The dispute centred on the provision made for Michael Nenes from the deceased's estate under the *Family Provision Act 1969* (ACT). The primary order under appeal was that $360,000 be paid to Michael Nenes from the estate.

The legal issues before the Court of Appeal were whether the primary judge erred in exercising discretion under section 8 of the *Family Provision Act 1969* (ACT) to order provision for Michael Nenes, and if so, whether the quantum of that provision was excessive. Specifically, the court considered the nature of the relationship between the deceased and Michael Nenes, and whether Michael Nenes was to be treated as an adult child for the purposes of the Act.

The Court of Appeal, comprising Elkaim ACJ and Rangiah J, reviewed the primary judge's decision. The court applied the principles established in cases such as *House v The King* regarding the limited grounds for appellate interference with a primary judge's exercise of discretion. The court considered the evidence presented regarding the deceased's relationship with Michael Nenes, including the extent to which the deceased had treated Michael Nenes as his child. The court also examined the deceased's testamentary intentions and the overall circumstances of the estate and beneficiaries.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's orders. The sum of $360,000 was to be paid to Michael Nenes from the estate, and Stella Nenes was to receive $11,450. The appellants were ordered to pay 50% of the plaintiffs' costs, and the executors' costs were to be paid out of the estate on an indemnity basis.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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