Legal Research
Cases
Lo Surdo v Public Trustee

Lo Surdo v Public Trustee

Case [2003] NSWSC 837 17 September 2003

Adverse Possession

Affiliation

Entitlement to Inheritance

Notary Public

Summary Judgment

Security for Costs

Residuary Beneficiary

Injunction

Succession Law

No judgment structure available for this case.

Type to search within this case.

CITATION: Lo Surdo v Public Trustee & Anor [2003] NSWSC 837

HEARING DATE(S): 10 September 2003

JUDGMENT DATE:
17 September 2003

JUDGMENT OF: Gzell J

DECISION: Application for summary termination and security for costs dismissed. Application for injunction dismissed.

CATCHWORDS: SUCCESSION - Family Provision and Maintenance - Plaintiff non-resident son of deceased - 'Affiliato' to Italian couple - Whether adopted or fostered - Adopted child entitled to inheritance in Italy, 'affiliato' not - Plaintiff registered to property in Italy by succession at law to Italian 'affilianti' - Whether proceedings should be summarily dismissed - Whether plaintiff should provide security for costs - Estate of deceased largely distributed to sister as sole residuary beneficiary - Application by plaintiff to have property designated as notional estate - Whether sister should be enjoined from dealing with property

LEGISLATION CITED: Family Provision Act 1982
Adoption Act 2000
Supreme Court Rules 1970
Foreign Judgments Act 1973

CASES CITED: Lieberman v Morris (1944) 69 CLR 69 at 85
Re Whiting [1938] SASR 188
King v Foster (unreported, CA (NSW), 7 December 1995)
Dey v Victorian Railways Commissioners (1948-1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Swain Investments Ltd v Danumet Pty Ltd (unreported, SC (NSW), 5 May 1989)
Connop v Varena Pty Ltd [1984] 1 NSWLR 71
Barton v Minister for Foreign Affairs (1984) 2 FCR 463 Kent Heating Ltd v Cook-on Gas Products Pty Ltd (1984) 59 ALR 277
CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270
Singer v Berghouse (1993) 114 ALR 521
Re Simson decd; Simson v National Provincial Bank Ltd [1950] Ch 38
Re Ralphs decd; Ralphs v District Bank Ltd [1968] 1 WLR 1522
Re Gough decd; Gough v Fletcher (1973) 5 SASR 559
Massie v Laundy (unreported, SC (NSW), 7 February 1986)
Deguara v Mercieca (unreported, SC (NSW) 23 August 1988)
Packo v Packo (1989) 17 NSWLR 316
Moon v Gordon (unreported, SC (NSW), 30 April 1996)

PARTIES :
Carmelo Lo Surdo - Plaintiff
The Public Trustee (as executor of the will of the late Carmela Cipolla) - 1st Defendant
Iolanda Quagliero - 2nd Defendant

FILE NUMBER(S): SC 3317/02

COUNSEL: Mr R D Wilson - Plaintiff
Mr V Ruta - 2nd Defendant

SOLICITORS: N J Papallo & Co - Plaintiff
P J Whitehead - 1st Defendant
McBride, Harle & Martin Solicitors - 2nd Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 17 SEPTEMBER 2003

3317/02 CARMELO LO SURDO v PUBLIC TRUSTEE & ANOR

JUDGMENT

1 The second defendant, Iolanda Quagliero, is the sole beneficiary under the will of her mother, Carmela Cipolla, deceased. She applied to stay or strike out the proceedings and, in the alternative, she sought an order for security for costs. The first defendant, the public trustee, is the executor and trustee of the estate. He did not appear on the application and will abide any orders of the court.

2 The respondent to the application,…

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 Lo Surdo v Public Trustee

Details

AGLC: Lo Surdo v Public Trustee [2003] NSWSC 837
Case: [2003] NSWSC 837
Decision Date: 17 September 2003

CaseChat Overview and Summary

In the case of Lo Surdo v Public Trustee, the plaintiff, a non-resident son of the deceased, sought to challenge the distribution of the estate, arguing that he was entitled to an inheritance under the Family Provision and Maintenance Act. The deceased had largely distributed their estate to the plaintiff's sister, who was the sole residuary beneficiary. The plaintiff, who was registered as the heir to a property in Italy under an Italian adoption-like arrangement known as 'affiliazione', contended that he was the deceased's adopted child, entitling him to a share of the estate. The court had to determine whether the plaintiff's adoption in Italy was recognised in Australia and whether he was entitled to claim under the Family Provision and Maintenance Act. Additionally, the court had to consider whether the proceedings should be dismissed summarily and whether the plaintiff should provide security for costs.

The court held that the plaintiff's adoption in Italy did not entitle him to claim under the Family Provision and Maintenance Act, as it was not a legal adoption under Australian law. The court reasoned that the term 'affiliato' in Italy did not equate to the status of an adopted child in Australia. Consequently, the plaintiff's application to have the property designated as part of the notional estate was dismissed. Furthermore, the court decided that the plaintiff should not be enjoined from dealing with the property and that the proceedings should not be summarily dismissed. The plaintiff was, however, required to provide security for costs.

The final orders of the court were that the plaintiff's application to have the property designated as part of the notional estate was dismissed. The plaintiff was also required to provide security for costs, but the proceedings were not summarily dismissed. The sister of the plaintiff was not enjoined from dealing with the property, and the court ruled that the plaintiff's adoption in Italy did not entitle him to claim under the Family Provision and Maintenance Act. The distribution of the estate to the sister as the sole residuary beneficiary remained unchanged.

Orders