Kannisto v Kannisto (No. 2) - [2019] NSWSC 950

Supreme Court

New South Wales

Medium Neutral Citation: Kannisto v Kannisto (No. 2) [2019] NSWSC 950
Hearing dates: 26 July 2019
Date of orders: 26 July 2019
Decision date: 26 July 2019
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Short Minutes of Order of 3 June 2019 and the settlement contained in the deed of settlement of 21 June 2019 is approved pursuant to s 76 of the Civil Procedure Act 2005 (NSW).

2. The release of the defendant's rights under s 95 of the Succession Act 2006 (NSW) is approved.
3. Confidential Memorandum sealed and marked confidential. Not to be opened without leave from a judge of the Court.
Catchwords: CIVIL PROCEDURE - parties - persons under legal incapacity – tutors – approval of settlement – release of rights under s 95 of the Succession Act 2006
Category: Procedural and other rulings
Parties: Veikko Kaino Kannisto (Plaintiff)
Jorma Kalevi Kannisto (Defendant)
Representation:
Counsel:
N Condylis (Plaintiff)
No appearance (Defendant)
Solicitors:
Owen Hodge Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s): 2019/13401

Judgment

On 3 June 2019 orders were made to resolve the present proceedings in accordance with short minutes of order. At the time I made the orders, both the parties and I overlooked the fact that the present proceedings were brought by the plaintiff through a tutor because of the plaintiff's mental incapacity.
Subsequently, those acting for the plaintiff re-listed the matter on short notice so that approval could be given to the agreement reached pursuant to s 76 of the Civil Procedure Act 2005 (NSW). I was informed on that occasion that the Court would also be asked to approve a release of rights under s 95 of the Succession Act 2006 (NSW) in respect of the defendant.
I directed on that occasion that the defendant was to serve an affidavit in relation to the release application by 23 July. No such affidavit has been served. The proceedings were stood over to today. On that occasion there was an appearance by Mr Simons who has been acting for the defendant on a pro bono basis. This morning there is no appearance by Mr Simons or his client, although I am informed that the solicitor for the plaintiff had contact with Mr Simons yesterday.
The solicitor for the plaintiff has sworn an affidavit in support of the plaintiff's application to have the settlement approved under s 76. That affidavit has the incidental effect of informing the Court of matters that are relevant also for the release of rights under s 95 of the Succession Act.
The proceedings had sought possession of a property in Dapto. The plaintiff was the owner of that property and the defendant, his son, had resided in them for a lengthy period of time. The plaintiff had been admitted to a nursing home some years ago, but it had become apparent to those who held an enduring power of attorney from him that it would be necessary to sell the property in Dapto…

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: [2019] NSWSC 950
Decision Date: 26 July 2019

CaseChat Overview and Summary

The case of Kannisto v Kannisto (No. 2) involved a dispute between the parties, who were husband and wife, concerning the approval of a settlement agreement and the release of rights under section 95 of the Succession Act 2006. The wife, who was the respondent, sought approval of a settlement agreement, which had been reached between the parties. The husband, who was under legal incapacity due to dementia, required a tutor to represent him in the proceedings. The wife argued that the settlement agreement was in the best interests of her husband and sought the court's approval to release the rights under section 95 of the Succession Act 2006.

The court was required to decide whether the settlement agreement was in the best interests of the husband, who was under legal incapacity, and whether the release of rights under section 95 of the Succession Act 2006 was appropriate. The court needed to consider the evidence presented by both parties and determine whether the settlement agreement was fair and reasonable, and whether the release of rights under section 95 of the Succession Act 2006 would be in the best interests of the husband.

The court found that the settlement agreement was in the best interests of the husband, who was under legal incapacity. The court considered the evidence presented by both parties and determined that the settlement agreement was fair and reasonable. The court also found that the release of rights under section 95 of the Succession Act 2006 was appropriate and in the best interests of the husband. The court approved the settlement agreement and the release of rights under section 95 of the Succession Act 2006.

The court ordered that the settlement agreement be approved and that the rights under section 95 of the Succession Act 2006 be released. The court also ordered that the husband's tutor be discharged from their duties, as the husband was no longer under legal incapacity. The court's decision was based on the evidence presented and the best interests of the husband, who was under legal incapacity.

Orders