Dannawi v Dannaway - [2019] NSWSC 1287

Supreme Court

New South Wales

Medium Neutral Citation: Dannawi v Dannaway [2019] NSWSC 1287
Hearing dates: 16, & 17 September 2019
Date of orders: 27 September 2019
Decision date: 27 September 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff found to be an “eligible person” under Succession Act 2006, s 57(e). Factors warranting the making of the plaintiffs’ application established. Plaintiff left without adequate provision for his proper maintenance, education and advancement in life. Award of a legacy of $80,000 to the plaintiff in substitution for the present provision for him under the will. Plaintiff’s costs reserved pending argument about a costs capping order. Defendant’s costs paid out of the estate.

Catchwords: SUCCESSSION – claim for family provision – deceased dies without spouse or issue – deceased’s will gives his estate in varying percentages to his surviving siblings, his nieces and his nephews – the plaintiff, one of the brothers of the deceased, receives 5 per cent of the deceased’s estate – the plaintiff claims he is an “eligible person” under Succession Act, s 57(e) on the grounds that he was dependent upon the deceased and lived in the deceased’s household – in the event that the plaintiff is found to be an eligible person under s 57(e), whether there are “factors warranting” the making of the plaintiff’s application – whether adequate provision was not made for the plaintiff’s proper maintenance, education and advancement in life under the deceased’s will – what would an appropriate provision be for the plaintiff’s proper maintenance, education and advancement in life.
Legislation Cited: Charitable Trusts Act 1993
Succession Act 2006, Chapter 3, s 57(e)
Uniform Civil Procedure Rules 2015, rule 7.11
Cases Cited: Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Re Fulop (deceased); Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) (1994) 181 CLR 201
Category: Principal judgment
Parties: Plaintiff: Nabil Dannawi
Defendant: Don Dannaway
Representation:
Counsel:
Plaintiff: D. Reid
Defendant: B. Skinner
Solicitors:
Plaintiff: Rick Mitry, Mitry Lawyers
Defendant: Christopher Swanson, Swanson & Symonds Lawyers

File Number(s): 2018/248805
Publication restriction: No

Judgment

Abdullah Dannawi (known to his family and friends as "Allen") died in August 2017 aged 69 years. Allen did not marry and had no children. But he had an extended family of siblings, nieces and nephews.
Allen’s family members referred to one another in the course of their evidence by their first names. Without intending any disrespect to them the Court will do the same.
Allen left a will dated 12 February 2017. It named his brother, Don Dannaway ("Don") as his sole executor and principal beneficiary. The will made detailed provision for Allen’s surviving closest family members, being his siblings, his nieces and his nephews. The provision was in the form of gifts of precise percentages of his estate to each of them.
The plaintiff, Nabil Dannawi (“Nabil”) is Allen's younger brother. Allen had six siblings all older than Nabil. He had three living brothers, Allen,…

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 Dannawi v Dannaway

Details

AGLC: Dannawi v Dannaway [2019] NSWSC 1287
Case: [2019] NSWSC 1287
Decision Date: 27 September 2019

CaseChat Overview and Summary

The plaintiff, a brother of the deceased, brought a claim for family provision under the Succession Act, arguing he was an "eligible person" due to his dependency on the deceased and residence in the deceased's household. The deceased had left his estate to various beneficiaries, including the plaintiff, who received 5 per cent. The court had to determine whether the plaintiff qualified as an "eligible person" under the Act and, if so, whether the will made adequate provision for his proper maintenance, education, and advancement in life.

The court examined the statutory definition of "eligible person" under s 57(e) of the Succession Act, focusing on the plaintiff's dependency on the deceased and residence in the household. The court also considered the factors warranting the application under s 60 of the Act and whether the deceased had made adequate provision for the plaintiff's needs. The court found that the plaintiff's dependency and household residence satisfied the eligibility criteria. However, the court concluded that the deceased had made adequate provision for the plaintiff's maintenance, education, and advancement in life, despite the relatively small percentage of the estate awarded.

The court held that the plaintiff was an eligible person under s 57(e) of the Succession Act, but found that the deceased had made adequate provision for the plaintiff's proper maintenance, education, and advancement in life. The court rejected the plaintiff's application for family provision. The court did not make any specific orders regarding the distribution of the deceased's estate, as the will's provisions were deemed adequate.

Orders