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Armouti v Nenes

Armouti v Nenes

Case [2022] ACTCA 3 11 February 2022

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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 (…

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 Armouti v Nenes

Details

AGLC: 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