Condello v Kim

Case [2018] NSWSC 394


Supreme Court


New South Wales

Medium Neutral Citation: Rocco Condello v Sung Soo Kim [2018] NSWSC 394
Hearing dates: 6, 7, 8 February 2017; 1, 24 March 2017
Decision date: 29 March 2018
Jurisdiction:Equity
Before: Kunc J
Decision:

Additional provision ordered for first plaintiff

Catchwords:

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
Legislation Cited: Family Law Act 1975 (Cth)
Succession Act 2006 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
Camernik v Reholc [2012] NSWSC 1537
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226; [1986] HCA 14
Day v Couch [2000] NSWSC 230
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Effem Foods P/L v. Trawl Industries of Australia P/L (receivers and managers appointed - in liquidation) & Ors (1993) 43 FCR 510; [1993] FCA 488
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Grundel v The Registrar General (1990) BPR 97-340
Kinch v Walcott [1929] AC 482
Maria Saravinovksa v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 36 FCR 406; [1992] FCA 377
Underwood v Gaudron [2014] NSWSC 1055
Verzar v Verzar [2014] NSWCA 45
Vukic v Luca Grbin and Ors; Estate of Zvonko Grbin [2006] NSWSC 41
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Wheatley v Wheatley [2006] NSWCA 262
Zahra v Francica [2009] NSWSC 1206
Category:Principal judgment
Parties:

Rocco Condello (First Plaintiff)
Gina Miceli (Second Plaintiff)

  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

  1. 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.

  2. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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