Hildebrandt v Papakonstantinou - [2024] NSWSC 1181

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Hildebrandt v Papakonstantinou [2024] NSWSC 1181
Hearing dates: 19-21 August 2024
Date of orders: 19 September 2024
Decision date: 19 September 2024
Jurisdiction: Equity - Real Property List
Before: Williams J
Decision:
Proceedings dismissed.

Catchwords:
ESTOPPEL – Proprietary estoppel – Where parents made promises over many years to give one half of rural property to each of their two children, a daughter and a son – Where daughter, together with her husband and children, moved from Canada to live on the property – Where each adult child has moved onto and made substantial improvements to their promised half of the property – Whether the promises induced the daughter and her husband to expect and assume that she, or they, would receive half of the property as an inheritance following the death of both of the parents, or at some earlier time – Where a development application for subdivision of the property into the two halves was rejected – Where the property passed to the mother on the death of the father by right of survivorship – Where the mother remains alive and is the sole registered proprietor of the property – Where the mother’s last will gives the property to her daughter and son as tenants in common in shares reflecting the value of the half of the property that each of them has developed and improved as a proportion of the value of the whole of the property, as determined by a registered valuer – Where mother has undertaken not to revoke or vary that will, and not to make a new will – Whether parents resiled from promises – If so, whether detriment to daughter and son-in-law – Held: There has been no resiling from the promises, which induced daughter and her husband to expect and assume that she, or they, would receive the southern half of the property by way of inheritance following the death of both of the parents.
SUCCESSION – Family provision – Claim by daughter for provision out of the estate of her late father – Where only material asset of father at time of his death was the property that was the subject of the promises – Where father, jointly with mother, made significant contributions during his lifetime to his daughter’s maintenance and advancement in life – Where further provision will be made for the daughter by the gift in her mother’s will of an interest in the property, consistently with the promises made by the parents to their daughter and son over many years – Where daughter’s evidence of financial position deficient – Held: Claim dismissed.

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 100
Real Property Act 1900 (NSW) s 74O
Succession Act 2006 (NSW) ss 57(1)(c), 59, 60
Trustee Act 1925 (NSW) ss 71, 76 78

Cases Cited:
Alexander v Jansson (2010) 6 ASTLR 432; [2010] NSWCA 176
Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582

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: [2024] NSWSC 1181
Decision Date: 19 September 2024

CaseChat Overview and Summary

The case of Hildebrandt v Papakonstantinou involved a dispute over a rural property where parents had promised to give each of their two children, a daughter and a son, one half of the property. The daughter, along with her husband and children, had moved from Canada to live on the property, and both adult children had made substantial improvements to their respective halves. The central issue was whether the parents had made clear and consistent promises that induced the daughter and her husband to expect an inheritance of half the property upon the death of both parents. The case also involved a rejected development application for the subdivision of the property, and the subsequent passing of the property to the mother following the father's death. The mother's will proposed to give the property to her children as tenants in common, in accordance with the value of the improvements they had made.

The court had to determine if the parents had reneged on their promises and whether the daughter and her husband had suffered any detriment as a result. It was established that the parents had not withdrawn from their promises, and these promises had indeed led the daughter and her husband to anticipate receiving the southern half of the property as an inheritance after the parents' deaths. The court also examined a claim by the daughter for additional provision from her late father's estate, considering the significant contributions the father had made to her maintenance and advancement during his lifetime, and the future provision made by the mother's will. Despite these factors, the court dismissed the daughter's claim due to deficiencies in her evidence regarding her financial situation.

Orders