PETER KULCZYCKI v PUBLIC TRUSTEE MICHAEL KULCZYCKI v PUBLIC TRUSTEE PETER KULCZYCKI v PUBLIC TRUSTEE
[2013] ACTSC 230 (29 November 2013)
EQUITY – equitable estoppel – statements made by mother to son – where son resided in property and paid expenses – whether intention was that house be a gift to son or left to son in will – estoppel not made out
FAMILY PROVISION AND MAINTENANCE – application by two of testator’s adult children – modest estate consisting of family home – where testator bequeathed family home to one son – deteriorating health of other son – appropriate orders as to costs – issue of reasonableness of costs left to assessment
No. SC 308 of 2012 No. SC 53 of 2013 No. SC 227 of 2013
Judge: Master Mossop Supreme Court of the ACT
Date: 29 November 2013
IN THE SUPREME COURT OF THE)
) No. SC 308 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:PETER KULCZYCKI
Plaintiff
AND:PULIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY (AS EXECUTOR OF THE ESTATE OF KATARYNA KULCZYCKI)
First Defendant
AND:MICHAEL KULCZYCKI
Second Defendant
ORDER
Judge: Master Mossop Date: 29 November 2013 Place: Canberra
THE COURT ORDERS THAT:
1. The proceedings are dismissed.
2. The Public Trustee is to have its costs paid on an indemnity basis from the estate.
3. Except as provided in order 2 there is no order as to costs.
4. The orders in relation to costs do not take effect if any party notifies my associate within 7 days that it wishes to tender evidence in relation to costs or make further submissions in relation to costs.
IN THE SUPREME COURT OF THE) ) No. SC 53 of 2013 AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MICHAEL KULCZYCKI
Plaintiff
AND:PUBLIC TRUSTEE FOR THE AUSTRALIAN CAPITAL TERRITORY (AS EXECUTOR OF THE ESTATE OF KATARYNA KULCZYCKI)
Defendant
ORDER
Judge: Master Mossop Date: 29 November 2013 Place: Canberra
THE COURT ORDERS THAT:
1. Michael Kulczycki is entitled to…
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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AGLC
Kulczycki v Public Trustee [2013] ACTSC 230
Case
[2013] ACTSC 230
Decision Date
CaseChat Overview and Summary
Kulczycki v Public Trustee is a case that dealt with issues of equitable estoppel and family provision and maintenance. The deceased, who was the mother of the two adult sons, had resided in the family home and paid the expenses associated with the property. The sons made an application to the court, seeking orders under the Family Provision and Maintenance Act. The sons argued that their mother had intended to gift the house to one son and leave it in her will to the other, and that they were entitled to an equitable estoppel on this basis. The court examined the nature of the mother's statements and actions, and the sons' reliance on those statements, to determine if an estoppel could be made out. The court found that there was no clear and unequivocal intention on the part of the mother to make a gift to one son or leave it to the other in her will, and that the sons' reliance on any statements made by their mother was not reasonable. The court also noted that the estate was modest, consisting primarily of the family home, and that the health of one son was deteriorating. The court found that appropriate orders as to costs should be made, but left the issue of the reasonableness of the costs to be assessed. The court ordered that the proceedings be dismissed, that the Public Trustee was to have its costs paid on an indemnity basis from the estate, and that there would be no order as to costs except as provided in the second order. The court also noted that if any party wished to tender evidence or make further submissions in relation to costs, they could do so within seven days of the court's decision.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The proceedings are dismissed.
2. The Public Trustee is to have its costs paid on an indemnity basis from the estate.
3. Except as provided in order 2 there is no order as to costs.
4. The orders in relation to costs do not take effect if any party notifies my associate within 7 days that it wishes to tender evidence in relation to costs or make further submissions in relation to costs.