Khadarou v Antarakis - [2021] NSWSC 743

Supreme Court

New South Wales

Medium Neutral Citation: Khadarou v Antarakis [2021] NSWSC 743
Hearing dates: 14, 15 and 16 April 2021
Date of orders: 29 June 2021
Decision date: 29 June 2021
Jurisdiction: Equity
Before: Emmett AJA
Decision:
Application dismissed with costs.

Catchwords:
SUCCESSION — family provision — claim by person in an alleged close personal relationship with the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — whether eligible person — whether living together

Legislation Cited:
Succession Act 2006 (NSW), ss 57, 59

Cases Cited:
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Harkness v Harkness [2011] NSWSC 1421
Hayes v Marquis [2008] NSWCA 10
Hughes v Charlton [2008] NSWSC 467

Texts Cited:
Nil

Category: Principal judgment
Parties: Sleiman Khadarou (Plaintiff)
Rita Joan Antarakis (Defendant)
Representation:
Counsel:
C Liedermann (Plaintiff)
J Brown with C Coventry (Defendant)
Solicitors:
Clayton James Solicitor (Plaintiff)
Winter Legal (Defendant)

File Number(s): 2020/151378
Publication restriction: Nil

Judgment

Introduction

The plaintiff, Mr Sleiman Khadarou (also known as Simon Khadarou), has applied for a family provision order under s 59 of the Succession Act 2006 (NSW) (the Succession Act) in respect of the estate of the late Argyrios Antarakis (also known as Eric Antarakis) (the Deceased). The Deceased died on 22 May 2019 leaving a will dated 26 June 1978 (the Will). By the Will, the Deceased appointed his brother, Michael Antarakis (the Executor), as executor of the Will. By the Will, the Deceased gave the whole of his estate to the Executor and their mother, Athina Antarakis, in equal shares. Athina Antarakis predeceased the Deceased and, accordingly, the Executor is entitled to the whole of the estate under the Will. Since the Executor was incapable of applying for probate, letters of administration with the Will annexed were granted to the Administratrix on 12 August 2019. The Executor had previously appointed his wife, the defendant, Mrs Rita Antarakis (the Administratrix), attorney under enduring power.
By summons filed on 21 May 2020, the plaintiff seeks a family provision order making provision for him from the estate of the Deceased together with an order that any property of the Deceased already distributed be designated as notional estate to the extent required to make such provision. The plaintiff claims that he and the Deceased were living in a close personal relationship at the time of the death of the Deceased and that, accordingly, he was an eligible person for the purposes of the Succession Act under s 57(1)(f).
Under s 59 of the Succession Act, the Court may, on application under Div 1 of Ch 3, make a family provision order in relation to the estate of a deceased person if the Court is satisfied, relevantly, that:

the person in whose favour the order is to be made is an eligible person,

having regard to all of the circumstances of the case, whether past or present, there are factors…

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 Khadarou v Antarakis

Details

AGLC: Khadarou v Antarakis [2021] NSWSC 743
Case: [2021] NSWSC 743
Decision Date: 29 June 2021

CaseChat Overview and Summary

The case of Khadarou v Antarakis was heard in the Supreme Court of New South Wales. The applicant, Mr. Khadarou, brought a claim against the estate of the deceased, Mrs. Antarakis, seeking provision under the Succession Act 2006 (NSW). He alleged that he had been in a close personal relationship with the deceased, thereby qualifying for a share of her estate. The respondent, the executor of Mrs. Antarakis's estate, contested the claim, arguing that the relationship did not meet the statutory requirements for a close personal relationship as defined by the Act.

The primary legal issue before the court was whether Mr. Khadarou's relationship with Mrs. Antarakis was of such a nature that he qualified as an eligible person under the Succession Act. Specifically, the court had to determine if the relationship met the criteria for "living together" as stipulated in the Act, and if it could be considered a close personal relationship. The court considered the nature, duration, and circumstances of the relationship, including the extent of cohabitation and the emotional and financial support provided.

The court found that the relationship between Mr. Khadarou and Mrs. Antarakis did not satisfy the requirements of a close personal relationship as defined by the Succession Act. The evidence did not support a finding that they had been living together in the manner contemplated by the legislation. The court held that the applicant's claim was not substantiated, and accordingly, the application was dismissed. The court did not make any orders for costs.

Orders