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El-Zaouk v Draybi

El-Zaouk v Draybi

Case [2010] NSWSC 1001 3 September 2010

Family Provision Act 1982

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CITATION: El-Zaouk v Draybi [2010] NSWSC 1001

HEARING DATE(S): 3 September 2010

JUDGMENT DATE :
3 September 2010

JUDGMENT OF: Hallen AsJ

DECISION: (a) Order that the Defendant's Notice of Motion filed on 20 August 2010 be dismissed.
(b) Order that the costs of the Notice of Motion be the Plaintiff's costs in the cause.
(c) Order that the mediation listed on 10 September 2010 be vacated.

CATCHWORDS: FAMILY PROVISION - Practice and procedure - Application for summary dismissal of claim - Facts in dispute - Other facts incomplete - Family Provision Act 1982

LEGISLATION CITED: Family Provision Act 1982
Probate and Administration Act 1898
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Carey v Robson [2010] NSWCA 212
Foley v Ellis [2008] NSWCA 288
Singer v Berghouse (No 2) (1994) 181 CLR 201; [1994] hca 40
Spencer v Commonwealth of Australia [2010] HCA 28
Vigolo v Bostin [2005] HCA 11 (2005) 221 CLR 191
Warren v McKnight (1996) 40 NSWLR 390

PARTIES: Ramona El-Zaouk
Tony Draybi

FILE NUMBER(S): SC 2010/116732

COUNSEL: R Wilson
F Sinclair

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

3 SEPTEMBER 2010

2010/116732 EL-ZAOUK v DRAYBI

1 HIS HONOUR: The Defendant is the sole executor under the will of his father, Roumanos Draybi, deceased. He has applied by notice of motion, filed on 20 August 2010, to strike out proceedings commenced by Summons filed by the Plaintiff, who is his sister, and a daughter of the deceased, in which she seeks a family provision order and other relief under the Family Provision Act 1982 (“the Act”).

2 The deceased died on 20 February 2006 and the Plaintiff’s Summons was filed on 11 May 2010. It is acknowledged that the Summons was served outside the period prescribed by the Act (18 months from the date of death). It is about 2 years and 9 months out of time. A claim to extend the time for the making of the application is sought in the Summons.

3 The affidavit in support of the Summons was filed on 23 July 2010. The only evidence that was filed in support of the notice of motion, until today, was an affidavit by the Defendant’s solicitor. This morning, without objection, I granted leave to the Defendant to file in court, the Defendant’s affidavit in the form of an executor’s affidavit. It is clear from that affidavit that the prescribed notices to be served upon other eligible persons, have not, as yet, been served.

4 There is no dispute, that the Plaintiff is an eligible person, within the meaning of that term under s 6(1)(b) of the Act. There is also no dispute that she received nothing out of the estate under the terms of the deceased’s Will, Probate of which Will was granted on 19 December 2006.

5 The Defendant’s solicitor’s evidence is that the estate was distributed “in about late 2007”. There is some dispute about this, it being submitted…

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 El-Zaouk v Draybi

Details

AGLC: El-Zaouk v Draybi [2010] NSWSC 1001
Case: [2010] NSWSC 1001
Decision Date: 3 September 2010

CaseChat Overview and Summary

El-Zaouk v Draybi was a case before the Supreme Court of New South Wales. The applicant, El-Zaouk, sought summary dismissal of a claim brought by Draybi under the Family Provision Act 1982, claiming provision for her maintenance from her father's estate. The legal dispute centred on whether the court should summarily dismiss the claim due to incomplete facts or whether it should proceed to a full hearing. The central issue was whether the facts in dispute and the incomplete facts warranted the claim proceeding to a full hearing, given the provisions of the Family Provision Act.

The court considered the requirements of the Family Provision Act, particularly whether the facts were complete and whether the court should summarily dismiss the claim. It was noted that the applicant had not provided all the facts necessary to determine the claim's validity. However, the court also recognised that there were disputed facts that needed clarification, which could potentially impact the outcome of the claim. Balancing these considerations, the court concluded that the claim should proceed to a full hearing to allow for a comprehensive examination of the facts.

In its decision, the court held that the claim should not be summarily dismissed. The incomplete facts and the disputed matters warranted a full hearing to ensure that all relevant information was considered. The court found that the applicant had not demonstrated a clear entitlement to summary dismissal and that the best course was to proceed with a full hearing to determine the merits of the claim. The court ordered that the application for summary dismissal be dismissed, and the matter be listed for a full hearing.

Orders