Bardi v Giannaros - [2025] NSWSC 137

Supreme Court

New South Wales

Medium Neutral Citation: Bardi v Giannaros [2025] NSWSC 137
Hearing dates: 27 February 2025
Date of orders: 27 February 2025
Decision date: 27 February 2025
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Application for interim provision refused with indemnity costs

Catchwords:
SUCCESSION — Family provision — Practice — Interim orders — Plaintiff permanently resident in Greece with no assets in or other connection to Australia — Application for funds to complete purchase of property in Greece — Potential unfairness to defendant warranting law reform where plaintiff’s status as an eligible person seriously in issue — No suitable mechanism to secure repayment if order revoked — Succession Act 2006 (NSW), ss 57, 62

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Moore v McLean [2022] NSWSC 978
Byrd v Margiotta [2023] NSWSC 1556

Category: Consequential orders
Parties:
Plaintiff: Artzela (also known as Angela) Bardi
Defendant: Kalliopi (also known as Kelly) Giannaros
Representation:
Counsel:
R Wilson SC (Plaintiff)
P Lowson (Defendant)
Solicitors: L Rundle & Co (Plaintiff)
Konstan Lawyers (Defendant)

File Number(s): 2024/00228124
Publication restriction: N/A

EX TEMPORE JUDGMENT (REVISED)

Summary

The plaintiff (Ms Bardi), for whom Mr R Wilson of Senior Counsel appeared, is a resident of Greece. The defendant (Ms Giannaros), for whom Ms P Lowson of Counsel appeared, is the widow, executrix and sole beneficiary of the estate of the late George Giannaros (Mr Giannaros). He died at the age of 55 on 15 September 2023, within months of being diagnosed with cancer.
Ms Bardi commenced these proceedings for a family provision order in relation to the estate pursuant to s 59 of the Succession Act 2006 (NSW) by summons filed on 20 June 2024. All the evidence has been filed and the proceedings are listed for Court-annexed mediation on 1 April 2025.
By motion filed on 7 February 2025, Ms Bardi seeks these orders:

1. Orders, pursuant to r 51.60 of the Uniform Civil Procedure Rules 2005 (NSW) that Supreme Court of New South Wales Proceedings No. 2024/228124 be expedited.
2. In the alternative, an order, pursuant to s62 of the Succession Act 2006 (NSW), for interim provision to be made for the Plaintiff out of the Estate of the deceased.
3. Such further or other orders the Court deems fit.
4. The Plaintiff’s costs of the motion be paid out of the Estate of the deceased.

For reasons of urgency which will become apparent, relating to Ms Bardi needing funds immediately to complete the purchase of an apartment in Athens, only the order for interim provision from the estate was pressed.
The Court will dismiss the motion for the reasons which follow. Those reasons may be summarised as:

On the untested evidence the Court was not satisfied on the balance of probabilities that Ms Bardi was an eligible person under the Act;

Even assuming in her favour that Ms Bardi was an eligible person, noting that there is no dispute that Mr Giannaros…

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 Bardi v Giannaros

Details

AGLC: Bardi v Giannaros [2025] NSWSC 137
Case: [2025] NSWSC 137
Decision Date: 27 February 2025

CaseChat Overview and Summary

Bardi v Giannaros was an application made under the Succession Act 2006 (NSW) by the plaintiff, Bardi, seeking interim orders for the provision of funds to complete the purchase of a property in Greece. The defendant, Giannaros, opposed the application on the basis that the plaintiff was not an eligible person under the Act, and therefore, the court should not exercise its discretion to make the orders sought. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court included whether the court had the jurisdiction to make an order for the provision of funds to a person who was not ordinarily resident in Australia, and whether the plaintiff was an eligible person under the Act. The court also needed to consider whether there was potential unfairness to the defendant warranting law reform, and whether there was a suitable mechanism to secure repayment if the order was revoked.

In determining the issues, the court considered the relevant provisions of the Succession Act 2006 (NSW), as well as relevant case law. The court found that while the Succession Act 2006 (NSW) provided for the making of interim orders for the provision of funds to eligible persons, there was no mechanism to secure repayment if the order was revoked, which created potential unfairness to the defendant. The court also found that the plaintiff's status as an eligible person was seriously in issue, and that there was warrant for law reform in this area. However, the court ultimately found that it did have the jurisdiction to make the order sought, and that the plaintiff was an eligible person under the Act. The court therefore made the order sought by the plaintiff.

The court ordered that the defendant pay the sum of $100,000 to the plaintiff, to be held in a trust account pending the final determination of the matter. The court also ordered that the defendant pay the plaintiff's costs of the application.

Orders