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Frisoli v Kourea

Frisoli v Kourea

Case [2013] NSWSC 1166 23 August 2013

Family Provision

Domestic Relationship

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Supreme Court

New South Wales

Medium Neutral Citation: Holden Francis Frisoli & Anor v Natasha Anastasia Kourea & Ors; Holden Francis Frisoli & Anor v Natasha Anastasia Kourea & Ors; [2013] NSWSC 1166
Hearing dates: 27, 28, 29, 30 & 31 August 2012, reserved on 10 September 2012
Decision date: 23 August 2013
Before: Slattery J
Decision:
Order for provision made in favour of the plaintiffs, such that they should each receive 25 per cent of the deceased's estate. Order for provision made in favour of the cross-claimant, such that she should receive 50 per cent of the deceased's estate.

Catchwords: SUCCESSION - Deceased dies intestate - whether cross-claimant is an "eligible person" under Succession Act, s 57 able to make a claim for family provision against his estate - cross-claimant claims to be in a domestic relationship with the deceased for at least seven years before his death - if so, whether adequate provision made for the proper maintenance, education and advancement in life of the cross-claimant - whether an order for provision should be made under Succession Act, s 59 - whether adequate provision made for the proper maintenance, education and advancement in life of the deceased's two children, the plaintiffs - whether an order for provision should be made in favour of the plaintiffs under Succession Act, s 59 - HELD: domestic relationship exists between the cross-claimant and the deceased at the time of his death and for approximately seven years before - cross-claimant an eligible person - adequate provision for the cross-claimant's maintenance, education and advancement in life not made - order for provision out of the deceased's estate made - adequate provision for the plaintiffs maintenance, education and advancement in life not made - order for provision made from the deceased's estate.
Legislation Cited: Interpretation Act 1987, s 21C
Succession Act 2006, s 57, 59, 60
Property (Relationships) Act, s 5(1)
Probate and Administration Act 1898 (NSW), s 61B(3B)
Cases Cited: Andrew v Andrew [2012] NSWCA 308, (2012) 81 NSWLR 656
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Dridi v Fillmore [2001] NSWSC 319
Evans v Levy [2011] NSWCA 125
Jones v Dunkel (1959) 101 CLR 298
Re Fulop (deceased) (1987) 8 NSWLR 679
Singer v Berghouse (No 2) (1994) 181 CLR 201
Vaughan v Hoskovich [2010] NSWSC 1459
Vigolo v Bostin (2005) 213 ALR 692; (2005) 221 CLR 191
Category: Principal judgment
Parties:
In proceedings 2010/93241:-
First plaintiff:- Holden Francis Frisoli
Second plaintiff:- Atlanta Lucia Carnell Frisoli
First defendant:- Natasha Anastasia Kourea
Second defendant:- Tashnat Pty Limited
In proceedings 2011/280507:-
First plaintiff:- Holden Francis Frisoli
Second plaintiff:- Atlanta Lucia Carnell Frisoli
First defendant:- Natasha Anastasia Kourea
Second defendant:- Tashnat Pty Limited
Representation:
Counsel:
Claimants/Respondents:- G. M. McGrath

Respondents/Claimants:- L. Ellison SC
Solicitors:
Claimants/Respondents:- Terence Joseph McNally, Lobban McNally Lawyers
Respondents/Claimants:- Sonia Simms, Proctor Willaws, Solicitors

File Number(s): 2010/93241; 2011/280507
Publication restriction: No

Judgment

Albert Frisoli died suddenly and violently on the evening of 6 May 2009 without having…

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 Frisoli v Kourea

Details

AGLC: Frisoli v Kourea [2013] NSWSC 1166
Case: [2013] NSWSC 1166
Decision Date: 23 August 2013

CaseChat Overview and Summary

In the case of Frisoli v Kourea, the deceased, who passed away intestate, left behind two children and a cross-claimant who asserted a claim for family provision against the estate. The legal dispute centred on the eligibility of the cross-claimant under the Succession Act, section 57, and whether adequate provision had been made for the proper maintenance, education, and advancement in life of both the cross-claimant and the deceased's children. The court had to determine whether a domestic relationship existed between the cross-claimant and the deceased, and if so, whether the deceased had made adequate provision for the cross-claimant. Additionally, the court was tasked with assessing whether adequate provision had been made for the children and if an order for provision should be made in their favour under Succession Act, section 59.

The court examined the nature of the relationship between the cross-claimant and the deceased, considering whether it qualified as a domestic relationship for the purposes of the Succession Act. The evidence indicated that a domestic relationship existed between them at the time of the deceased's death and had been ongoing for approximately seven years prior. This established the cross-claimant's eligibility to make a claim under the Act. The court then assessed whether adequate provision had been made for the cross-claimant's maintenance, education, and advancement in life, concluding that it had not. Similarly, the court examined the provisions made for the deceased's children, finding that they too had not been adequately provided for.

Following these findings, the court made orders for provision out of the deceased's estate for both the cross-claimant and the deceased's children. The decision underscored the importance of the domestic relationship criterion in family provision claims and highlighted the court's role in ensuring that all eligible persons receive adequate provision from the estate. The final orders mandated that the estate provide for the proper maintenance, education, and advancement in life of both the cross-claimant and the deceased's children, reflecting the court's commitment to equitable distribution of the deceased's assets.

Orders