Bezjak v Wyatt

Case [2018] NSWSC 199


Supreme Court


New South Wales

Medium Neutral Citation: Bezjak v Wyatt [2018] NSWSC 199
Hearing dates: 13 – 14 December 2017
Date of orders: 28 February 2018
Decision date: 28 February 2018
Jurisdiction:Equity
Before: Hallen J
Decision:

Orders that the Plaintiff’s Summons be dismissed.

 

Orders that any argument as to the costs of the proceeding be listed on a date to be arranged when these reasons are published.

Orders that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of how the costs of the proceedings are to be borne.
Catchwords: SUCCESSION – Claim for declaration that the Plaintiff is a person with whom the deceased person was living in a de facto relationship at the time of the deceased person's death – Claim for family provision order –– Reliance on different categories of eligibility – Defendant denies that Plaintiff an eligible person within any category of eligibility – Defendant also denies that, if relevant, there are factors warranting the making of the Plaintiff’s application – Whether eligibility and factors warranting the making of the application established and, if so, whether an order for provision ought to be made.
Legislation Cited: Civil Liability Act 2002 (NSW)
Family Provision Act 1982 (NSW)
Interpretation Act 1987 (NSW)
Property (Relationships) Act 1984 (NSW)
Relationships Register Act 2010
Succession Act 2006 (NSW)
Cases Cited: Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1
Ashton v Pratt (No 2) [2012] NSWSC 3
Ballard v Multiplex [2012] NSWSC 426
Bar-Mordecai v Hillston [2004] NSWCA 65
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123
Bkassini v Sarkis [2017] NSWSC 1487
Boettcher v Driscoll (2014) 119 SASR 523; [2014] SASC 86
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241
Dakin v Sansbury [2010] FMCAfam 628
de Angelis v de Angelis [2003] VSC 432
Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235
Dion v Rieser [2010] NSWSC 50
Doshen v Pedisich [2013] NSWSC 1507
Estate Pamplin; Irwin v Pamplin [2017] NSWSC 1477
Foley v Ellis [2008] NSWCA 288
Gardiner v Gardiner (Supreme Court (NSW), Santow J, 28 May 1998, unrep)
Goodman v Windeyer (1980) 144 CLR 490; [1980] HCA 31
Grey v Harrison [1997] 2 VR 359
Hayes v Marquis [2008] NSWCA 10
Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160
Hunter v Hunter (1987) 8 NSWLR 573
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Ingamells v Western…

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Bezjak v Wyatt [2018] NSWSC 199
Case
[2018] NSWSC 199
Decision Date

CaseChat Overview and Summary

The Plaintiff in Bezjak v Wyatt sought a declaration that she was living in a de facto relationship with the deceased at the time of his death, along with a family provision order. The Defendant, the deceased's son, contested the Plaintiff's eligibility for such an order under the relevant legislation and denied the existence of any factors that would warrant granting the Plaintiff's application. The case was heard in the Supreme Court of Queensland.

The court needed to determine whether the Plaintiff's eligibility for a family provision order was established and, if so, whether such an order should be granted. This required an examination of the criteria for determining de facto relationships and the factors that may justify a family provision order. The Plaintiff argued that she met the criteria for being considered in a de facto relationship with the deceased and that the factors in her favour warranted the court making a family provision order. The Defendant argued that the Plaintiff did not meet the criteria for a de facto relationship and that no factors existed to justify a family provision order.

The court found that the Plaintiff had not established that she was in a de facto relationship with the deceased at the time of his death. The court held that the Plaintiff had not demonstrated a sufficient level of emotional and financial interdependence with the deceased to meet the criteria for a de facto relationship. The court also found that the Plaintiff had not established any factors warranting the making of a family provision order. The court held that the Plaintiff had not demonstrated any exceptional circumstances or any other factor that would justify the court making a family provision order in her favour.

As a result of the findings, the court dismissed the Plaintiff's claims. The court held that the Plaintiff was not eligible for a family provision order and that no order should be made in her favour. The court did not make any orders in favour of the Plaintiff.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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