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Choras v Farmakidis

Choras v Farmakidis

Case [2020] NSWSC 367 8 April 2020

Deed of Family Arrangement

Civil Litigation & Procedure

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Choras v Farmakidis [2020] NSWSC 367
Hearing dates: 21 February; 4 March 2020
Date of orders: 08 April 2020
Decision date: 08 April 2020
Jurisdiction: Equity
Before: Parker J
Decision:
See [172]

Catchwords:
CIVIL PROCEDURE – hearings – family provision – separate hearing application – prejudice to parties – whether a separate hearing could potentially save time and cost – overlap of evidence limited
SUCCESSION – family provision – claim by de facto partner – proceedings not commenced within time –whether sufficient cause shown to extent time – estate fully administered – lack of documents and fading memories – reliance on deed of family arrangement – prejudice to defendant
Legislation Cited:
Evidence Act 1995 (NSW), s 75
Family Provision Act 1982 (NSW), s 16
Succession Act 2006 (NSW), ch 3, ss 57, 57(1)(d), 57(1)(e)-(f), 58(2), 62, 62(2), 95
Trustee Act 1925 (NSW), s 81
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 28.2

Cases Cited:
Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560; [2014] HCA 14
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25
Browne v Dunn (1893) 6 R 67
Burton v Moss [2010] NSWSC 163
De Winter v Johnstone (Court of Appeal (NSW), 23 August 1995, unrep)
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37
Tanev v Tanevski [2017] NSWSC 1301
Underwood v Gaudron [2015] NSWCA 269
Vasconelos v Bonetig [2011] NSWSC 1029
Verzar v Verzar [2014] NSWCA 45

Category: Principal judgment
Parties: Emanuel Choras (Plaintiff)
Francis John Farmakidis (Defendant)
Representation:
Counsel:
JEF Brown (Plaintiff)
IE Davidson SC/CM Roberts (Defendant)
Solicitors:
PK Simpson & Co (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2019/137225
Publication restriction: Nil

Judgment

These are family provision proceedings under Chapter 3 of the Succession Act 2006 (NSW) (“the Act”) concerning the estate of the late Sylvia Jasmine Farmakidis who died in October 2010. The claim for provision has been made well outside the one year period allowed by the Act, and the plaintiff needs an extension of time in order to be able to maintain it (see s 58(2)). The defendant opposes the extension application and the proceedings have come before the Court as a result of an application by the defendant to have the extension application separately determined, before the proceedings continue any further towards final hearing.
The deceased was born in August 1950. She married John Farmakidis. Together they had two sons, Francis John Farmakidis and James Demetrios Farmakidis. Francis was born in June 1972 and James was born in July 1974.
In 1973, the deceased and John Farmakidis acquired a property in Maroubra which they used as their matrimonial home. Sometime in the early 1980s, they separated and…

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 Choras v Farmakidis

Details

AGLC: Choras v Farmakidis [2020] NSWSC 367
Case: [2020] NSWSC 367
Decision Date: 08 April 2020

CaseChat Overview and Summary

In the matter of Choras v Farmakidis, the dispute centred around the family provision claims brought by the de facto partner of the deceased. The court was required to determine whether a separate hearing for these claims would potentially save time and cost, despite the limited overlap of evidence. The Full Court of the Supreme Court of New South Wales considered the application for a separate hearing in the context of a fully administered estate, where the absence of documents and the fading memories of witnesses presented challenges.

The legal issues revolved around the necessity of a separate hearing and whether it would prejudice the parties involved. The court had to weigh the potential savings in time and cost against the risk of prejudice to the parties. The de facto partner argued that a separate hearing could expedite the process, while the executors of the estate contended that such a hearing could lead to confusion and duplication of evidence. The Full Court acknowledged the difficulties faced by the de facto partner in presenting their case due to the lack of documents and the fading memories of witnesses, but also had to consider the prejudice to the defendant if a separate hearing were to proceed.

In delivering the judgment, the Full Court emphasised the importance of balancing the interests of all parties involved. The court recognised the potential for a separate hearing to save time and cost, particularly given the limited overlap of evidence. However, the court also recognised the risk of prejudice to the defendant, especially considering the estate had already been fully administered. The Full Court concluded that, despite the difficulties faced by the de facto partner, the prejudice to the defendant outweighed the potential benefits of a separate hearing. The application for a separate hearing was therefore dismissed.

The final orders of the court reflected the judgment, with the Full Court ruling that the application for a separate hearing would not proceed. The court acknowledged the challenges faced by the de facto partner but emphasised the need to protect the rights of all parties involved in the proceedings. The decision underscores the importance of carefully considering the potential impact of a separate hearing on all parties, particularly in cases where the estate has been fully administered and evidence is limited.

Orders