Khadarou v Antarakis

[2022] NSWCA 99

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Khadarou v Antarakis [2022] NSWCA 99

Hearing dates:

10 May 2022

Decision date:

10 May 2022

Before:

White JA at [1];
Kirk JA at [19];
Basten AJA at [20]

Decision:

(1) Extend the time for the filing of the notice of appeal to 17 November 2021.

(2) Appeal dismissed with costs.

Catchwords:

SUCCESSION – Family provision – Provision from the deceased’s estate under the Succession Act 2006 (NSW), Ch 3 – Whether eligible person – Whether living together – Close friendship between the appellant and the deceased – Appellant regularly provided domestic support and personal care to the deceased

Legislation Cited:

Succession Act 2006 (NSW) ss 3, 57, 59

Cases Cited:

Lodin v Lodin [2017] NSWCA 327

Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679

Yesilhat v Calokerinos [2021] NSWCA 110

Category:

Principal judgment

Parties:

Sleiman Khadarou (Appellant)
Rita Joan Antarakis (Respondent)

Representation:

Counsel:
Appellant unrepresented
J E F Brown with C Coventry (Respondent)

Solicitors:
Appellant unrepresented
Winter Legal (Respondent)

File Number(s):

2021/00326602

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Equity Division

Citation:

[2021] NSWSC 743

Date of Decision:

29 June 2021

Before:

Emmett AJA

File Number(s):

2020/151378

Judgment – EX TEMPORE

1. WHITE JA: This is an appeal from orders of the Equity Division (Emmett AJA) dismissing the appellant’s application for a family provision order (Khadarou v Antarakis [2021] NSWSC 743).

2. The appellant claimed to be an eligible applicant pursuant to s 57(1)(f) of the Succession Act 2006 (NSW). That is, he claimed that at the time of the deceased’s death he was living with the deceased in a close personal relationship. The primary judge held that if there were a close personal relationship between the deceased and the appellant, (which his Honour did not decide) nonetheless the appellant and the deceased were not living together at the time of the deceased’s death (J [44]-[56]).

3. The appellant does not challenge that finding in his notice of appeal nor in his written submissions. To the contrary, he stated in his written submissions that he was not able to live with the deceased as he was obliged to care for his dependent children at the time. In oral submissions, he confirmed that he was not living with the deceased.

4. The primary judge also held (at [56]-[57]) that the evidence was not capable of supporting a conclusion that if the appellant were an eligible applicant under s 57(1)(f) there were factors warranting the making of the application (s 59(1)(b)).

5. The appellant had legal representation at trial but represented himself on appeal. In his notice of appeal he stated that he proceeded with his claim with the intention of seeking compensation for the works and care he had provided the deceased (ground 3). In his written submissions (prepared by his son) he stated:

“It would be unconscionable for the deceased to resile from the promises he made to the appellant…