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Daniel v Athans

Daniel v Athans

Case [2022] NSWSC 1712 16 December 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Daniel v Athans [2022] NSWSC 1712
Hearing dates: 8 – 10 August 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction: Equity
Before: Robb J
Decision:
The Court:
(1) Declares that the defendant as administrator of the estate of the late Richard John Janson (the deceased) holds the deceased’s property at [No 36] on trust for the plaintiff.
(2) Order that the defendant as administrator of the deceased’s estate cause [No 36] to be transferred to the plaintiff within 28 days of these orders.
(3) Orders that the plaintiff’s costs be paid out of the deceased’s estate on the ordinary basis.
(4) Orders that the defendant’s costs be paid out of the deceased’s estate on the indemnity basis.

Catchwords:
ESTOPPEL — proprietary estoppel — encouragement — plaintiff and deceased close friends for over twenty years — deceased and deceased’s mother own neighbouring properties — deceased allows plaintiff to reside rent-free in his property while deceased lives with mother — whether deceased represented to plaintiff that he could reside there ‘for good’ if he paid certain expenses and provided assistance to deceased’s elderly mother — whether deceased later represented to plaintiff that deceased would transfer property to plaintiff for fulfilling assistance asked of him — whether plaintiff has equitable interest in property because of proprietary estoppel — estoppel claim successful
SUCCESSION — family provision — claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — proceedings not commenced within time — whether sufficient cause shown to extend time — whether eligible person — whether factors warranting — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — family provision claim successful in alternative

Legislation Cited:
Evidence Act 1995 (NSW), s 140
Succession Act 2006 (NSW), ss 57, 58, 59, 60, 91
Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 7.10

Cases Cited:
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Chisak v Presot [2022] NSWCA 100
Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1; [2016] HCA 26
Delaforce v Simpson-Cook (2010) 78 NSWLR 483 at 488; [2010] NSWCA 84
Evans v Evans [2010] NSWSC 170
Evans v Evans [2011] NSWCA 92
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785
Giumelli v Giumelli (1999) 196 CLR 101; [1999] HCA 10
Lorena Zupicic v Angela La Camera Paino as Trustee for the Estate of the Late Mario Novick [2018] NSWSC 692
Moore v Aubusson [2020] NSWSC 1466
Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14
Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220
Sarant v Sarant [2020] NSWSC 1686
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Spata v…

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 Daniel v Athans

Details

AGLC: Daniel v Athans [2022] NSWSC 1712
Case: [2022] NSWSC 1712
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of Daniel v Athans involved a dispute concerning the alleged promise made by the deceased to the plaintiff, a close friend, to allow him to reside rent-free on his property in exchange for providing assistance to the deceased’s elderly mother. The deceased and his mother owned neighbouring properties, and the plaintiff resided in the deceased’s property under these circumstances. The plaintiff sought to enforce the alleged promise via a claim for proprietary estoppel, arguing that the deceased had represented he could reside in the property 'for good' and that the deceased would transfer the property to the plaintiff upon fulfilling the assistance requested. The case was heard and determined in the Supreme Court of New South Wales.

The central legal issues revolved around whether the deceased had made specific representations to the plaintiff that would give rise to a proprietary estoppel. Additionally, the court had to determine whether the plaintiff was an eligible person under the Succession Act 2006 (NSW) to make a claim for family provision, and whether sufficient cause existed to extend the time for initiating the proceedings. The court needed to assess whether the deceased had made proper and adequate provision for the plaintiff and, if not, the nature and quantum of the provision that should be made.

In its decision, the court found that the deceased had indeed made representations to the plaintiff that amounted to a promise, thus establishing a proprietary estoppel. The plaintiff was deemed an eligible person under the Succession Act, and the court accepted that there was sufficient cause to extend the time for initiating the family provision claim. The court concluded that the deceased had not made proper and adequate provision for the plaintiff, and it ordered that the plaintiff be provided with an equitable interest in the property to compensate for the assistance rendered. This equitable interest was determined to be a suitable remedy under the circumstances.

The court's final orders were that the plaintiff had an equitable interest in the property due to the proprietary estoppel and, in the alternative, that the plaintiff was entitled to a family provision from the deceased’s estate. The exact nature and quantum of the family provision were to be determined in subsequent proceedings, ensuring the plaintiff received adequate compensation for the assistance provided.

Orders