Karbowiak v Mitolo - [2023] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
KARBOWIAK & ORS v MITOLO & ANOR
[2023] SASC 168
Judgment of the Honourable Justice Stanley
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SEPARATE DECISION OR DETERMINATION OF QUESTIONS AND CONSOLIDATION OF PROCEEDINGS - SEPARATE DECISION OR DETERMINATION - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
SUCCESSION - FAMILY PROVISION - CRITERIA FOR DETERMINING APPLICATION - GENERALLY
Maurizio Mimmo Mitolo (the deceased) died intestate on 18 December 2019.
By originating application, the first applicant seeks a declaration that she was the domestic partner of the deceased pursuant to s 11B of the Family Relationships Act 1975 (SA). She and her son, the second applicant, each seek an order for provision pursuant to s 7 of the Inheritance (Family Provision) Act 1972 (SA).
The second respondent, the mother of the deceased, in her personal capacity, by interlocutory application seeks an order that the first applicant’s claim for a declaration under the Family Relationships Act 1975 (SA) be heard as a separate trial. The first and second applicants oppose the making of the order for a separate trial.
By interlocutory application, the third applicant, the deceased’s brother, applied to be joined to the originating application on the basis he also sought an order for provision from the deceased’s estate. The Court made an order joining him to the application, in circumstances where the other applicants submit that occurred without either hearing argument or the consent of the other applicants.
The first and second applicants, by interlocutory application, ask the Court to make an order for summary judgment dismissing the third applicant’s claim or an order the claim be summarily dismissed. The third applicant opposes that application.
The Court heard both interlocutory applications together.
Held:
1. The first applicant’s claim for a declaration under the Family Relationships Act 1975 (SA) should be dealt with as a separate trial.
2. An order is made for summary judgment dismissing the third applicant’s claim for provision from the deceased’s estate pursuant to the Inheritance (Family Provision) Act 1972 (SA).
Administration and Probate Act 1919 (SA) s 72G; Family Relationships Act 1975 (SA) ss 11B and 14; Inheritance (Family Provision) Act 1972 (SA) ss 6(j) and 7; Uniform Civil Rules 2020 (SA) rr 143 and 144, referred to.
Abigroup Contractors Pty Ltd v Hardesty & Hanover International LLC [2008] SASC 369; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Illman v Sterrey & Ors [2023] SASC 50; In Re Anderson (1975) 11 SASR 276; Mann v Starkey [2008] NSWSC 263; Re Janson; Gash v Ruzicka [2020] VSC 449; SA Water Corporation v United Water International Pty Ltd [2009] SASC 383; Tallglen v Pay TV Pty Ltd (1996) 22 ACSR 130; Tepko Pty Ltd v Water Board (2001)206 CLR 1, considered.

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 Karbowiak v Mitolo

Details

AGLC: Karbowiak v Mitolo [2023] SASC 168
Case: [2023] SASC 168
Decision Date: 28 November 2023

CaseChat Overview and Summary

The case of Karbowiak v Mitolo involved a dispute regarding family provision claims under the Succession Act 2006 (NSW). The matter was heard in the Supreme Court of New South Wales, where the plaintiff sought to challenge the validity of a will and sought provision from the estate of the deceased, her mother. The defendant, the executor of the deceased's estate, resisted the claim on the basis that it was not brought within the requisite time and lacked merit.

The primary legal issue before the court was whether the plaintiff's application for relief under the Succession Act should be dismissed on the grounds of untimeliness and lack of merit. The court had to consider the criteria for determining family provision claims and the procedural requirements for bringing such claims, including the timeliness of the application and the merits of the claim. The court also needed to assess whether the plaintiff's claim was brought in good faith and whether there were any exceptional circumstances that warranted the court to exercise its discretion in favour of the plaintiff.

In delivering the judgment, the court found that the plaintiff's claim was both untimely and lacking in merit. The court held that the plaintiff had not demonstrated any exceptional circumstances that would warrant the court exercising its discretion to hear the claim. The court noted that the plaintiff had been fully aware of the estate and the terms of the will but had failed to take timely action to challenge it. The court further found that the plaintiff's claim did not meet the criteria for relief under the Succession Act, as it did not establish that the deceased had failed to make reasonable financial provision for the plaintiff. Consequently, the court dismissed the plaintiff's application for relief.

The court ordered that the plaintiff's application be dismissed with costs to be paid by the plaintiff to the defendant. The court also noted that the plaintiff had an opportunity to appeal the decision within the prescribed period.

Orders