Bkassini v Sarkis (No 2) (Revised) - [2020] NSWSC 1465

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bkassini v Sarkis (No 2) (Revised) [2020] NSWSC 1465
Hearing dates: 14 May 2020 and on the papers
Decision date: 22 October 2020
Jurisdiction: Equity
Before: Robb J
Decision:
See pars [164] and [165].

Catchwords:
JUDGMENTS AND ORDERS — Effect of — where need to perfect an order made following a hearing that the plaintiff perform repairs to a residential property the subject of a Crisp order by specifying the repairs and the timing of the repairs being carried out –– where the parties were unable to agree as to appropriate short minutes of order –– where the funds available to carry out the repairs were substantially exhausted by a shortfall in the expected sale price of an asset of the estate and the amount of legal costs incurred by the parties –– where the only practical course was to require that only essential repairs be effected –– where the repairs finally proposed by the plaintiff were ordered to be performed — no issue of principle

Legislation Cited:
Conveyancing Act 1919 (NSW)
Family Provision Act 1982 (NSW)

Cases Cited:
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
William Bkassini v Sonya Sarkis [2017] NSWSC 1487

Category: Procedural rulings
Parties: William Bkassini (plaintiff)
Sonya Sarkis (defendant)
Representation:
Counsel: G McNally SC (plaintiff)
J Needham SC (defendant)
Solicitors: Colin Daley Quinn (plaintiff)
MJM Lawyers (defendant)

File Number(s): 2015 / 27946

Judgment

Following the hearing in this matter, the Court delivered its judgment on 1 November 2017: William Bkassini v Sonya Sarkis [2017] NSWSC 1487 (the principal judgment).
These reasons assume knowledge of the principal judgment and I will use the same terms as used in that judgment.

The principal judgment

The plaintiff, William, succeeded in an application under s 7 of the Family Provision Act 1982 (NSW) (the Family Provision Act) for further provision from the estate of his deceased wife. William’s daughter, Sonya, is the defendant and the deceased’s executor and trustee of her testamentary trust. The parties made various other claims against each other, but it is not necessary for present purposes to record those claims in detail.
The deceased’s estate consisted substantially of interests in two adjoining properties, which were called No 93 and No 95 for the purposes of the principal judgment. At the time of her death, the deceased and William owned each of the properties equally as tenants in common. Number 95 had been the deceased’s and William’s matrimonial home.
Because of the relative complexity of the claims and the outcome, I indicated at [416] of the principal judgment that I would require the parties to confer and prepare short minutes of order to give effect to the findings that I had made. At [417], I made observations concerning the subjects that were required to be dealt with in the short minutes of order. At [419], I said that…

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 Bkassini v Sarkis (No 2) (Revised)

Details

AGLC: Bkassini v Sarkis (No 2) (Revised) [2020] NSWSC 1465
Case: [2020] NSWSC 1465
Decision Date: 22 October 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Bkassini v Sarkis (No 2) (Revised) involved a dispute between the plaintiff and the defendant regarding the performance of repairs to a residential property. The court was asked to decide the effect of an order that required the plaintiff to perform repairs to the property, which was the subject of a Crisp order. The parties were unable to agree on the appropriate short minutes of order, and the funds available to carry out the repairs were substantially exhausted by a shortfall in the expected sale price of an asset of the estate and the amount of legal costs incurred by the parties. The court had to determine the appropriate course of action to be taken in this situation.
The court considered the issue of whether the repairs finally proposed by the plaintiff should be performed. The court noted that the only practical course was to require that only essential repairs be effected. The court also considered the issue of the effect of the order made following a hearing that the plaintiff perform repairs to the residential property. The court concluded that no issue of principle was involved in this case.
The court ordered that the repairs finally proposed by the plaintiff be performed. The court also noted that the parties were required to reach an agreement on the short minutes of order to be made in relation to the repairs. The court did not make any further orders in relation to the case.

Orders