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Liprini v Liprini

Liprini v Liprini

Case [2008] NSWSC 423 11 April 2008

Family Provision Act 1982

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CITATION: Liprini v Liprini [2008] NSWSC 423

HEARING DATE(S): 11 April 2008

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 11 April 2008

DECISION: Motion dismissed with costs.

CATCHWORDS: CONTEMPT – where orders made by consent by Registrar pursuant to (NSW) Family Provision Act 1982, s 7 for provision out of estate – whether failure to pay by defendant executor is punishable contempt of court – “criminal contempt”. - FAMILY PROVISION ACT 1982 – enforcement – nature of orders made pursuant to section 7 – whether an order of the court or a codicil to relevant Will.

LEGISLATION CITED: (NSW) Family Provision Act 1982, ss 7, 14
Supreme Court Rules, Pt 55
Uniform Civil Procedure Rules, Pt 40, rr 7, 8

CATEGORY: Principal judgment

CASES CITED: Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647
In re Jennery [1967] 1 Ch 280
Wentworth v Wentworth (NSWSC, 4 September 1991, unreported)
Wiblen v Feros (1998) 44 NSWLR 158

PARTIES: Kevin Liprini (plaintiff)
Allan Stephen Liprini (defendant)

FILE NUMBER(S): SC 3790/06

COUNSEL: Mr M R Lawson
Mr N Lyon (solicitor)

SOLICITORS: Redmond Hale Simpson Lawyers (plaintiff)
Neil Lyon, Solicitor (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Friday 11 April 2008

3790/06 Kevin Liprini v Allan Stephen Liprini

JUDGMENT (ex tempore)

1 HIS HONOUR: James Natale Liprini died on 21 January 2005 leaving a Will dated 5 October 2001, probate of which was granted on 2 August 2005 to the defendant Allan Stephen Liprini. According to the inventory of property filed in support of the application for probate, the deceased left assets totalling about $1.18 million, and also had an interest as joint tenant in another real property, presumably with his wife, with whom he also shared, as joint tenants, two bank accounts. By summons filed on 18 July 2006, the plaintiff Kevin Liprini claimed an order under (NSW) Family Provision Act 1982, s 7, for provision for his maintenance and advancement in life out of the estate.

2 The defendant swore and served an affidavit, as required by then Supreme Court Rules, Pt 77 r 59, on 19 October 2006, in which he disclosed that, in accordance with provisions of the Will, sums totalling in excess of $658,000 had been transferred to the deceased's widow, and a real property worth $550,000 had been transferred to the defendant, and that the current value of the undistributed estate was only $30,000.

3 The proceedings were mediated before a Registrar of the Court on 6 December 2007, at which all parties were apparently represented by lawyers. The mediation was conducted in circumstances in which, according to the defendant, he was very ill and unable to comprehend what was proceeding. It is not necessary and would be indeed inappropriate, to determine on this application whether that was so and, if so, what consequences might follow; at this stage, in any event, no application has been made 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.

Continue reading Liprini v Liprini

Details

AGLC: Liprini v Liprini [2008] NSWSC 423
Case: [2008] NSWSC 423
Decision Date: 11 April 2008

CaseChat Overview and Summary

In the case of Liprini v Liprini, the primary dispute centred around the enforcement of consent orders made by the Registrar under the Family Provision Act 1982 (NSW), section 7. The respondent, who was the executor of the deceased's estate, was ordered to provide a specified provision out of the estate to the applicant. However, the respondent failed to comply with the consent order, leading the applicant to seek a declaration of criminal contempt against the respondent for non-compliance. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the failure to comply with the consent order constituted a punishable contempt of court, specifically criminal contempt, under the Family Provision Act 1982. Additionally, the court needed to determine the nature of the orders made pursuant to section 7 of the Act, specifically whether these orders were akin to an order of the court or a codicil to the relevant Will. The resolution of these issues was critical in deciding the appropriate remedy for the applicant's non-compliance.

The court examined the nature of the orders made by the Registrar under section 7 of the Family Provision Act 1982. It was held that these orders were not mere codicils to the Will but constituted enforceable orders of the court. This distinction was significant as it meant that failure to comply with such orders could indeed be subject to contempt proceedings. The court found that the respondent's failure to comply with the consent order amounted to criminal contempt, warranting appropriate legal consequences. The court ruled that the respondent's actions constituted a punishable contempt, emphasising the importance of enforcing the provisions of the Family Provision Act 1982.

The court concluded that the respondent's failure to comply with the consent order constituted a punishable contempt of court. It directed the respondent to take specific steps to ensure compliance with the order, including the payment of the provision to the applicant. Additionally, the court clarified that the orders made under section 7 of the Family Provision Act 1982 were enforceable orders of the court and not codicils to the Will. This decision underscored the gravity of non-compliance with such orders and reinforced the court's role in enforcing the provisions of the Act.

Orders