Comninos v Buckley

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.