Gianna (Jenny) Angius v Gordon Albert Salier - [2018] NSWSC 995

Supreme Court

New South Wales

Medium Neutral Citation: Gianna (Jenny) Angius v Gordon Albert Salier [2018] NSWSC 995
Hearing dates: 20 June 2018
Date of orders: 29 June 2018
Decision date: 29 June 2018
Jurisdiction: Equity
Before: Robb J
Decision:
The Court
(1) Declines at this time to make the orders sought in par 1 of the notice of motion filed by Robert Angius on 3 April 2018.
(2) Grants leave to Robert Angius to renew his application for the relief sought in par 1 of his notice of motion filed on 3 April 2018.
(3) Orders that an interim distribution of $1 million be paid out of the estate of the late Laura Angius from the cash amount held by the administrator, Mr Gordon Albert Salier, to the applicant, Robert Angius.

Catchwords:
CIVIL PROCEDURE — Parties — Joinder — Of defendant — Family provision proceedings — Joinder of applicant as second defendant declined — leave granted to the applicant to renew his application for joinder at a date closer to the hearing
SUCCESSION — Wills, probate and administration — Interim distribution — whether interim distribution from the deceased’s estate should be ordered in favour of the applicant — applicant to receive interim distribution from deceased’s estate
Legislation Cited: Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Probate and Administration Act 1898 (NSW)
Cases Cited: Vasiljev v Public Trustee (1974) 2 NSWLR 497
Estate of Peter Frangos: Frangos v Frangos (Victorian Court of Appeal, unreported, 7 July 1995)
Boldi v Crozier [2015] NSWSC 2155
Angius v Salier [2018] NSWSC 808
Re Anderson (1953) 53 SR (NSW) 520
Romano v Romano [2004] NSWSC 775
Steiner v Strang: Estate of Steiner [2012] NSWSC 919
Steiner v Strang [2017] NSWSC 132
Category: Procedural and other rulings
Parties: Robert Angius (Applicant)
Gianna (Jenny) Angius (First Respondent/Plaintiff)
Gordon Albert Salier (Second Respondent/Defendant)
Representation:
Counsel:
V Culkoff (Applicant)
JEF Brown (First Respondent/Plaintiff)
M Wilmott SC and W C Birtles (Second Respondent/Defendant)
Solicitors:
PV Legal (Applicant)
Teece Hodgson & Ward (Second Respondent/Defendant)
Remedy Legal (First Respondent/Plaintiff)

File Number(s): 2013/56245

Judgment

The questions for determination arise in proceedings commenced on 22 February 2013 by Gianna (Jenny) Angius for family provision orders under s 59 of the Succession Act 2006 (NSW).
The defendant is Mr Gordon Albert Salier, who is the administrator of the estate of the deceased, Laura Angius. Laura Angius was the mother of the plaintiff, and died on 4 January 2012.
As has become customary, with no disrespect to the members of the Angius family, I will for convenience refer to them by their first names.
The matter that is before the Court arises under a notice of motion filed by Jenny's brother, Robert Angius, on 3 April 2018. Robert is not a party to these proceedings, and he seeks the following orders:

1. An order that Robert Angius be joined as Second Defendant to the proceedings under Part 6 rule 24 of the Uniform Civil Procedure Rules 2005 (NSW), on condition that:
he…

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.

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Details

Case: [2018] NSWSC 995
Decision Date: 29 June 2018

CaseChat Overview and Summary

The case before the court was Gianna (Jenny) Angius, the plaintiff, versus Gordon Albert Salier, the defendant. The dispute involved family provision proceedings under the Succession Act 2006 (NSW), where the plaintiff sought an order for joinder as a second defendant and an interim distribution from the deceased's estate. The matter was heard in the Supreme Court of New South Wales.

The court was required to determine whether the plaintiff, Gianna Angius, should be joined as a second defendant in the family provision proceedings. Additionally, the court needed to decide if an interim distribution from the deceased's estate should be ordered in favour of the plaintiff. These issues were central to the case, as they would affect the distribution of the deceased's estate and the rights of the parties involved.

In its reasoning, the court noted that while joinder of a party in family provision proceedings is not mandatory, it may be appropriate in certain circumstances. The court declined to join the plaintiff as a second defendant at that time but granted leave to the plaintiff to renew his application for joinder at a later stage, closer to the hearing. The court also found that an interim distribution from the deceased's estate should be ordered in favour of the plaintiff. This decision was based on the consideration of the plaintiff's financial circumstances and the potential impact on their ability to meet their needs.

The final orders of the court were that the application for joinder was declined but leave was granted to the plaintiff to renew his application for joinder at a later date. Additionally, an interim distribution from the deceased's estate was ordered in favour of the plaintiff. This outcome aimed to provide some financial support to the plaintiff while the proceedings continued.

Orders