Maiolo v Caristo - [2008] NSWSC 236

CITATION: Maiolo v Caristo [2008] NSWSC 236

HEARING DATE(S): 07/03/08

JUDGMENT DATE :
7 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

EX TEMPORE JUDGMENT DATE: 7 March 2008

DECISION: Application for interlocutory injunction refused with costs

CATCHWORDS: SUCCESSION - claim by three adult sons under Family Provision Act - attempt to bring in as notional estate home that passed to de facto partner by survivorship - plaintiffs seek interlocutory restraint on dealing with home until trial - plaintiffs' claims weak to marginal - de facto partner elderly - has lived there for a long time - no threat to dispose of property

LEGISLATION CITED: Family Provision Act 1982, s 27

CATEGORY: Principal judgment

CASES CITED: Grisonic v Suttor [2004] NSWSC 137; (2004) 12 BPR 22,797

PARTIES: Mario Criss Maiolo - First Plaintiff
Frank Anthony Maiolo - Second Plaintiff
Bruce Peter Maiolo - Third Plaintiff

FILE NUMBER(S): SC 1734/08

COUNSEL: Mr M G Vincent - Plaintiffs
Mr R D Wilson - Defendant

SOLICITORS: Harry Bundock - Plaintiffs
Wood Marshall WIlliams - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY 7 MARCH 2008

1734/08 MARIO CRISS MAIOLO & 2 ORS v MARIA CARISTO

JUDGMENT

1 These are provisions under the Family Provision Act 1982. The plaintiffs are three of the four sons of the deceased, Giuseppe Maiolo. The defendant is the surviving de facto wife of the deceased.

2 On the evidence as it stands, it seems that the relationship of the deceased and the defendant was of long standing, having commenced in 1983 and continued until the deceased’s death in August 2007. The actual estate is negligible but, at his death, the deceased and the defendant were the registered proprietors as joint tenants of a residential property at Manly Vale. They had owned the property since 1991 and it was their home from then until the deceased’s death. The property passed by survivorship on the death of the deceased.

3 The case the plaintiffs would seek to make under the Act would entail an application for an order that the Manly Vale property be designated as notional estate so that, despite its having passed to the defendant by survivorship, it could nevertheless be available as a source of provision under the Act.

4 Presently before me is an interlocutory application for an order restraining the defendant from disposing of or dealing with or encumbering the Manly Vale property pending trial.

5 Counsel on both sides have approached the matter on the basis that it is for the plaintiff to show that there is an arguable claim or serious question to be tried in the plaintiffs’ case and that thereafter the court must consider the balance of convenience.

6 The arguable case inquiry needs to centre on the claims of the three sons under the Act. The evidence at this stage is sparse but indicates a few matters of relevance. First, the three sons left home in their late teenage years, some…

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 Maiolo v Caristo

Details

AGLC: Maiolo v Caristo [2008] NSWSC 236
Case: [2008] NSWSC 236
Decision Date: 7 March 2008

CaseChat Overview and Summary

The case of Maiolo v Caristo involved a dispute over the succession of a deceased person's estate, with three adult sons seeking to claim under the Family Provision Act. They attempted to include a home that had passed to the deceased's de facto partner by survivorship as part of the notional estate. The plaintiffs sought an interlocutory restraint on dealing with the home until the trial. The case was heard in the Supreme Court of Victoria, which had to determine whether the restraint should be granted.

The legal issues the court had to address were whether the sons' claims were weak to marginal and whether the de facto partner, who was elderly and had lived in the home for a long time, posed a threat of disposing of the property. The court had to balance the interests of the plaintiffs in preserving the potential assets available for their claims against the de facto partner's rights to deal with the property as they saw fit. The court also had to consider the balance of convenience and whether the restraint would cause more harm than good.

The court found that the plaintiffs' claims were weak to marginal and that the de facto partner, who had lived in the home for a long time, did not pose a threat to dispose of the property. The court decided that granting the restraint would cause more harm than good, as it would interfere with the de facto partner's rights to deal with the property. The court held that the balance of convenience favoured denying the restraint. The court also noted that the de facto partner was elderly and had lived in the home for a long time, which further supported its decision.

The court denied the interlocutory restraint on dealing with the home and dismissed the plaintiffs' application. The de facto partner was free to deal with the property as they saw fit, subject to any final orders made in the case. The case highlights the importance of considering the balance of convenience and the rights of all parties involved in a succession dispute.

Orders