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Comninos v Buckley

Comninos v Buckley

Case [2019] NSWSC 968 1 August 2019

Civil Litigation & Procedure

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Comninos v Buckley; The Estate of Comninos [2019] NSWSC 968
Hearing dates: 18 July 2019
Date of orders: 01 August 2019
Decision date: 01 August 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court orders that:

(1) Denise Buckley be joined as a party/Defendant to the proceedings.

(2) The rules requiring the Plaintiff to file an amended Summons be dispensed with.

(3) The proceedings be dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(4) The Plaintiff pay the Defendant’s costs, calculated on the ordinary basis, of the proceedings, including the costs of the Defendant’s notice of motion filed 22 May 2019.
(5) The Defendant’s costs, calculated on the indemnity basis, of the proceedings, including of the notice of motion filed 22 May 2019, to the extent that those costs are not recovered from the Plaintiff, be paid, or retained, as the case may be, out of the estate of the deceased.
Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Family provision order sought by brother of deceased – Proceedings out of time – Issues at final hearing will concern whether “sufficient cause” shown for the application being made out of time, whether Plaintiff an eligible person, and whether factors warranting making of the application established – Plaintiff estranged from deceased for many decades prior to deceased’s death – Further issue, if all other issues arguable, whether adequate provision for the proper maintenance, education or advancement in life of the Plaintiff has not been made by the will of the deceased – Whether the proceedings are an abuse of process, frivolous or vexatious – Whether a high degree of certainty about the ultimate outcome or should the proceedings go to trial in the ordinary way
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Attorney General In and for the State of New South Wales v Markisic [2012] NSWSC 433
Bodikian v Sproule [2009] NSWSC 599; (2009) 72 ACSR 598
Brindley v Wade [2019] NSWSC 303
Dey v Victorian Railways Commissioners (1949) 78 CLR 62 [1949] HCA 1
Estate Grundy; La Valette v Chambers-Grundy [2018] NSWSC 104
General Steel Industries Inc v Cmr for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
In re Rules of the Supreme Court 1971 (WA); ex parte Nikoloff [2019] WASC 263
Jackson v Newns [2011] VSC 32
Page v Page [2016] NSWSC 1218
Page v Page (2017) 16 ASTLR 331; [2017] NSWCA 141
Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19
Shaw v State of New South Wales (2012) 219 IR 87; [2012] NSWCA 102
Sidebottom v Cureton (1937) 54 WN (NSW) 88
Simmons v New South…

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 Comninos v Buckley

Details

AGLC: Comninos v Buckley [2019] NSWSC 968
Case: [2019] NSWSC 968
Decision Date: 01 August 2019

CaseChat Overview and Summary

In the case of Comninos v Buckley, the plaintiff, Comninos, sought a family provision order from the court, claiming that his brother, the deceased, had not made adequate provision for his proper maintenance, education, or advancement in life. The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that despite being estranged from the deceased for many years, he should still be entitled to a family provision order. The defendant, Buckley, opposed the claim on the basis that the proceedings were brought out of time, and that there was insufficient cause to allow the late application.

The legal issues before the court were whether the plaintiff had shown sufficient cause for making the application out of time, whether the plaintiff was an eligible person under the Family Provision Act, and whether the factors warranting the making of the application were established. Additionally, if all other issues were arguable, the court had to determine whether adequate provision for the proper maintenance, education, or advancement in life of the plaintiff had been made by the deceased. The court also considered whether the proceedings were an abuse of process, frivolous or vexatious, and whether there was a high degree of certainty about the ultimate outcome.

The court found that the plaintiff's application was made out of time and that there was no sufficient cause shown for the late application. The court noted that the plaintiff had been estranged from the deceased for many decades prior to the latter's death, and that the plaintiff had not demonstrated any compelling reason for the delay in bringing the application. The court also found that the plaintiff was not an eligible person under the Family Provision Act as he had not been living with the deceased in the twelve months preceding the deceased's death. Furthermore, the court held that even if the plaintiff was an eligible person, there was no evidence to suggest that adequate provision had not been made for the plaintiff's maintenance, education, or advancement in life. The court concluded that the proceedings were an abuse of process, frivolous, and vexatious.

The court dismissed the plaintiff's claim and ordered that the proceedings be struck out. The court found that there was a high degree of certainty about the ultimate outcome and that the proceedings should not go to trial in the ordinary way. The court also noted that the proceedings had caused significant distress to the defendant, who had to incur legal costs in defending the claim. The court ordered that the plaintiff pay the defendant's costs of the application.

Orders