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Bayssari v Bazouni

Bayssari v Bazouni

Case [2014] NSWSC 910 9 July 2014

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bayssari v Bazouni [2014] NSWSC 910
Hearing dates: 30 June and 1 July 2014
Decision date: 09 July 2014
Jurisdiction: Equity Division
Before: Ball J
Decision:
Proceeding be dismissed with costs

Catchwords: SUCCESSION - family provision - whether applicant an "eligible person" under Succession Act 2006 (NSW), s 57(1)(e) or s 57(1)(f) - whether applicant "wholly or partly dependent on the deceased" and "a member of the household of which the deceased person was a member" - whether applicant and deceased in a "close personal relationship" at the time of deceased's death
COSTS - family provision - whether circumstances warrant departure from general rule in UCPR r 42.1 that costs follow the event
Legislation Cited: Family Provisions Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Andrew v Andrew [2012] NSWCA 308; (2012) 81 NSWLR 656
Barlevy v Nadolski [2011] NSWSC 129
Benney v Jones (1991) 23 NSWLR 559
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Diver v Neal [2009] NSWCA 54
Donaldson v Lawless [2013] NSWSC 861
Dridi v Fillmore [2001] NSWSC 319
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Fulton v Fulton [2014] NSWSC 619
Fulton v Fulton (No 2) [2014] NSWSC 857
Grech v Walsh [2007] NSWSC 302
Harrisson v Skinner [2013] NSWSC 736
Harkness v Harkness (No 2) [2012] NSWSC 35
Hayes v Marquis [2008] NSWCA 10
Hogan v Hogan [2013] NSWSC 1405
Kingsland v McIndoe [1989] VR 273
Lillis v Lillis [2010] NSWSC 359
McKenzie v Baddeley [1991] NSWCA 197
Markulin v Drew (1993) DFC 95-140
McCusker v Rutter [2010] NSWCA 318
McDougall v Rogers; Estate of James Rogers [2006] NSWSC 484
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Munro v Lake (Supreme Court (NSW), 8 February 1991, unrep)
Oldereid v Chan [2013] NSWSC 434
Petrohilos v Hunter (1991) 25 NSWLR 343
Phillips v James [2014] NSWCA 4
Popescu v Borun [2011] NSWSC 1532
Porthouse v Bridge [2007] NSWSC 686
Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Re Fulop Deceased (1987) 8 NSWLR 679
Russell v NSW Trustee and Guardian [2013] NSWSC 370
Sharpless v McKibbin [2007] NSWSC 1498
Simmons v Pizzey [1979] AC 37
Singer v Berghouse [1993] HCA 35; (1993) 114 ALR 521
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Skarica v Toska [2014] NSWSC 34
Skinner v Frappell [2008] NSWCA 296
Thompson v Public Trustee of New South Wales [2010] NSWSC 1137
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Wagstaff v Wagstaff (Supreme Court (NSW), 6 November 1991, unrep)
Wolff v Deavin [2012] NSWSC 1315
Category: Principal judgment
Parties: Maroun Bayssari (Plaintiff)
Antoine Bazouni (First Defendant)
Marierose Harfouche (Second Defendant)
Representation: Counsel:
J Hyde (Plaintiff)
FFF Salama (Defendants)
Solicitors:
Prestige Solicitors (Plaintiff)
New South Lawyers (Defendants)

File Number(s): 2013/139768
Publication restriction: None

Judgment

Introduction

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 Bayssari v Bazouni

Details

AGLC: Bayssari v Bazouni [2014] NSWSC 910
Case: [2014] NSWSC 910
Decision Date: 09 July 2014

CaseChat Overview and Summary

The case of Bayssari v Bazouni involved the applicant, Bayssari, seeking family provision from the estate of the deceased, Bazouni, under the Succession Act 2006 (NSW). Bayssari argued they were an eligible person under either section 57(1)(e) or 57(1)(f) of the Act, which respectively refer to a spouse or a de facto partner of the deceased. The central issue was whether Bayssari was wholly or partly dependent on the deceased, a member of the household of which the deceased was a member, and in a close personal relationship with the deceased at the time of their death. Additionally, the case addressed whether the circumstances warranted a departure from the general rule in UCPR r 42.1 that costs follow the event.

The court examined the statutory criteria outlined in the Succession Act 2006 (NSW) to determine Bayssari's eligibility for family provision. It assessed the evidence presented regarding the nature of the relationship between Bayssari and the deceased, including the level of dependency and the circumstances of their cohabitation. The court also considered the definition of a "close personal relationship" and whether it encompassed the relationship between Bayssari and the deceased. Regarding costs, the court evaluated whether the exceptional circumstances justified a departure from the standard rule that costs follow the event.

The court concluded that Bayssari did not meet the criteria for family provision under the Succession Act 2006 (NSW). It found that Bayssari was not wholly or partly dependent on the deceased and did not satisfy the requirement of being in a close personal relationship with the deceased at the time of their death. Consequently, the court dismissed the application for family provision. In relation to costs, the court ruled that the circumstances did not warrant a departure from the general rule, and thus, costs followed the event. Bayssari was ordered to pay the costs of the proceeding.

Orders