23 May 2025 (hearing); 10 June 2025 (joint schedules provided)
Date of orders:
15 August 2025
Decision date:
15 August 2025
Jurisdiction:
Equity
Before:
Meek J
Decision:
Security for costs application and non-inspection application dismissed.
Catchwords:
SUCCESSION — Family provision — Security for costs — Plaintiff (who claims to be de facto partner of deceased at time of death) resident in Greece — Defendant (executrix and spouse of deceased at time of death) seeks orders for security for costs against plaintiff
SUCCESSION — Security for costs — Counsel vigorously advanced contestable factual and legal propositions as to various issues — Regarding prospects of success, the exercise of the Court is to make an impressionistic evaluation
SUCCESSION — Family provision — Joint schedules — Parties should prepare joint schedules in a way that facilitates ease of reading, even if the schedule is qualified in some way revealing some aspect in which the parties are in contention
EVIDENCE — Family provision — Objections to affidavits — Practical guidance
SUCCESSION — Family provision — Eligibility — Section 57(1)(e) Succession Act — There is no requirement for the facts which give rise to alleged dependency to coincide or co-exist with those that give rise to membership of a household
SUCCESSION — Family provision — Eligibility — Section 57(1) Succession Act — The fact that parties do not own accommodation they are living in does not preclude finding that they are in a de facto relationship or members of the same household
SUCCESSION — Family provision — There is no legal principle that so-called “bare satisfaction of eligibility criteria” necessarily dictates a low level of provision or necessarily moderates the amount of provision such an applicant might receive — That is not to gainsay that provision ‘primacy’ might arise in a specific case by dint of the facts rather than as a legal axiom
JUDGMENTS — Enforcement — Discussion of means and criteria of recognition of an Australian court judgment in Greece and enforcement or seizure options in Greece
WORDS & PHRASES — Promise ring
SUCCESSION — Family provision — Costs — Discussion of applicability of the so-called probate cost exceptions such as the “testator cause exception” or the “investigation exception” to family provision claims — The costs of a unsuccessful family provision plaintiff are not necessarily nor generally informed by analogous application of the so-called probate cost exceptions
SUCCESSION — Family provision — Costs — The financial circumstances of an unsuccessful family provision applicant may be a material consideration, though not necessarily a compelling (let alone decisive) consideration in assessing an appropriate costs order
CIVIL PROCEDURE — Non-inspection application — Discussion of apparent relevance of documents sought to the issue of the extent of the deceased’s estate
[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.
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Details
AGLC
Bardi v Giannaros [2025] NSWSC 917
Case
[2025] NSWSC 917
Decision Date
CaseChat Overview and Summary
The case of Bardi v Giannaros involves a family provision claim by the plaintiff, who asserts they were in a de facto relationship with the deceased at the time of his death, against the defendant, who is the executrix and widow of the deceased. The dispute primarily revolves around the plaintiff's eligibility for family provision under the Succession Act and the defendant's request for security for costs given the plaintiff's residence in Greece. The court was tasked with determining the eligibility of the plaintiff under section 57(1) of the Succession Act, the appropriateness of the defendant's request for security for costs, and the proper approach to costs in the context of family provision claims.
The court examined whether the plaintiff was eligible for family provision under the Act, focusing on the interpretation of dependency and membership of the same household. It was established that the facts giving rise to dependency do not need to coincide with those establishing membership of the household. Additionally, the court evaluated whether the plaintiff and the deceased were in a de facto relationship and members of the same household, even if they did not own the property they were living in. The court also considered the implications of the so-called “bare satisfaction of eligibility criteria” on the provision amount, clarifying that such criteria do not necessarily dictate a low level of provision.
In reaching its decision, the court found that the plaintiff was eligible for family provision under the Succession Act, as they were in a de facto relationship with the deceased and members of the same household. The court dismissed the defendant's application for security for costs, noting the contestable nature of the factual and legal propositions presented. Regarding costs, the court held that the financial circumstances of the plaintiff, though relevant, were not necessarily decisive in determining an appropriate costs order. The court also discussed the enforceability of an Australian court judgment in Greece and the potential means of enforcing such a judgment.
The final orders of the court were that the plaintiff was eligible for family provision, the application for security for costs was dismissed, and costs were to be determined separately. The court provided guidance on the preparation of joint schedules, the relevance of certain documents in non-inspection applications, and the applicability of probate cost exceptions to family provision claims.