Le v Angius - [2022] NSWSC 240

Supreme Court

New South Wales

Medium Neutral Citation: Le v Angius [2022] NSWSC 240
Hearing dates: 18 February 2022
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
See [108]

Catchwords:
SUCCESSION – family provision – alleged de facto relationship – application for continued possession of deceased’s home – interlocutory injunction – strength of prima facie case – relationship with final relief – balance of convenience – interim provision – likelihood of order for possession or ownership by way of final relief – balance of convenience – application refused

Legislation Cited:
Family Provision Act 1982 (NSW), s 9
Probate and Administration Act 1898 (NSW), ss 44, 61
Succession Act 2006 (NSW), ss 62, 72
Uniform Civil Procedure Rules 2005 (NSW), r 7.10

Cases Cited:
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199
Bryan v Beveridge [2021] NSWSC 1406
Roberts v Moses [2015] NSWSC 1504
Steiner v Strang [2017] NSWSC 132
Woollahra Municipal Council v Jeffries [1981] 1 NSWLR 377
Young v Salkeld (1985) 4 NSWLR 375

Category: Procedural rulings
Parties: Thi Quy Le (Plaintiff)
Jenny Angius (Defendant)
Representation:
Counsel:
L Ellison SC (Plaintiff)
E Picker (Defendant)
Solicitors:
AKN & Associates (Plaintiff)
Mills Oakley (Defendant)

File Number(s): 2022/41064
Publication restriction: Nil

Judgment

On 18 February 2022 I heard an interlocutory application in family provision proceedings. The plaintiff, who claims to have been the deceased’s de facto wife, or at least companion, sought orders restraining his daughter, who has been named as his executor, from taking possession of the deceased’s home and evicting the plaintiff and her son. I refused the plaintiff’s application. What follows are my reasons for that decision.
The proceedings concern the estate of the late John (also known as “Giovanni”) Angius. He was born in October 1936 in Italy. According to a medical report in evidence, he came to Australia in about 1957.
After he arrived in Australia the deceased married his wife, Laura. Together they had two children: Robert Angius (from whom the deceased was apparently estranged), and the defendant, Jenny Angius. The deceased’s wife Laura died in January 2012. He did not remarry. He died ten years later at the age of 85.
The matrimonial home was a house at Denning Street, Coogee. The deceased was living there prior to his death. It is this property which was the main focus of the plaintiff’s application. It is a substantial one. The house is said to have four bedrooms, four bathrooms, extensive living areas including a roof-top terrace, and garaging for three cars.
The plaintiff, Thi Quy Le, is of Vietnamese extraction. She was born in March 1963, making her twenty-six years younger than the deceased. She claims that she and the deceased lived together in a de facto relationship for the last ten years or so of the deceased’s life. Before that, she claims, they were in a sexual relationship for eight years or so.
The plaintiff has at…

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 Le v Angius

Details

AGLC: Le v Angius [2022] NSWSC 240
Case: [2022] NSWSC 240
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case of Le v Angius involved a dispute concerning family provision under Australian succession law. The applicant, Le, sought continued possession of the deceased's home, which was also claimed by the respondent, Angius, who asserted a de facto relationship with the deceased. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the applicant had established a prima facie case for a de facto relationship and whether this was sufficient to warrant an interlocutory injunction for continued possession of the property. The court had to weigh the strength of the applicant's case against the balance of convenience and consider the likelihood of obtaining final relief in the form of possession or ownership. The court also had to assess the interim provision needs of the parties.

The court found that while the applicant had presented some evidence of a de facto relationship, it was not sufficient to establish a prima facie case. The court emphasised that the strength of the case for a de facto relationship was closely linked to the final relief sought. The balance of convenience favoured the respondent, given the applicant's inability to demonstrate a strong case for a de facto relationship. Consequently, the application for an interlocutory injunction was refused. The court determined that the applicant had not shown a compelling need for continued possession, considering the uncertainty of the final outcome.

Orders