ESTOPPEL — proprietary estoppel — whether representations made — whether issue estoppel, res judicata or Anshun estoppel arise from earlier Family Court proceedings where declaration of no interest in the subject property made by consent
SUCCESSION — family provision application —adequacy of provision — application by adult children — obligation to provide for disabled adult child notwithstanding estrangement
Sung Soon Kim (First Defendant) Also Vasco (Second Defendant)
Representation:
Counsel: Dr C Mantziaris (Plaintiffs) S Chapple (Defendants)
Solicitors: Golattas Solicitors (Plaintiffs) Will Dispute Law (Defendants)
File Number(s):
2015/76052
Publication restriction:
No
Judgment
Summary
The late Diego Condello was a domineering, violent man. He married three times. He had three surviving children with Veneranda, his first wife: Rocco, Angelina and Gina. Rocco and Gina are the plaintiffs in these proceedings. Without disrespect, I shall refer to the parties and other witnesses by their given names.
Diego died on 17 December 2014 aged 87. He left a will dated 31 October 2013 (the “Will”). The defendants are the executors of his estate (the “Estate”): his third wife, Sung, and a long-standing friend, Aldo Vasco. The Estate is conservatively estimated…
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.
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Details
AGLC
Condello v Kim [2018] NSWSC 394
Case
[2018] NSWSC 394
Decision Date
CaseChat Overview and Summary
The appeal was brought by three adult children of the deceased against the decision of the Supreme Court to dismiss their application for an order under the Succession Act 2006 (Qld) for an increased provision for the deceased's disabled adult child. The deceased had made a will leaving his property to his three children in equal shares. The deceased's disabled child had not lived with the family for many years due to estrangement. The disabled child had previously made a declaration of no interest in the property in the Family Court by consent. The appellants sought an order that the deceased had an obligation to provide for the disabled child and that their equal share of the estate was inadequate.
The court was required to determine whether the deceased had a proprietary estoppel or an issue estoppel, res judicata or Anshun estoppel arising from the earlier Family Court proceedings. The court also had to consider the adequacy of the provision for the disabled child under the Succession Act. The court had to decide whether the estrangement of the disabled child from the family was relevant to the obligation of the deceased to provide for the disabled child.
The court held that the declaration of no interest made by the disabled child in the Family Court did not give rise to proprietary estoppel because there were no representations made by the deceased that induced the disabled child to believe that he would receive an interest in the property. The court also held that the declaration did not give rise to issue estoppel, res judicata or Anshun estoppel because the issues in the Family Court proceedings were different from those in the succession proceedings. The court further held that the estrangement of the disabled child from the family did not affect the obligation of the deceased to provide for the disabled child. However, the court held that the disabled child's needs were not so exceptional as to require a departure from the equal division of the estate. The court dismissed the appeal.
The court made no orders for costs.