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 time around 1980, and it appears that they thereafter had little contact with their father. Second and as I have said, the defendant, was a de facto partner of longstanding. Third, it is probably fair to say that relations between the three sons and the defendant were not good and that events of the late 1970s and early 1980s were of a kind that probably left resentments on both sides.

7 The preliminary assessment of the prospects of the sons in the proceedings would have to be that their claims face hurdles. In order to have the Manly Vale property designated notional estate, they would have to negotiate the obstacles in s 27 of the Act which focuses attention on the reasonable expectations, in relation to that property, of the defendant as the surviving de facto wife and on the substantial merits involved in making, or refusing to bring, the property back into the estate. That raises an issue which is of wider significance in the proceedings as a whole, namely, the position occupied by a widow in cases of this kind. The courts are careful to say that there can be no assumption that a widow occupies a superior position, but, at the same time, there is a fairly general acceptance that, in the absence of special circumstances, a testator might be expected to make provision in particular for his widow and that this is especially so when it comes to the matrimonial home.

8 For those reasons it may well turn out in the long run that the sons’ claims are not seen to be particularly strong claims. The arguable case is, to my mind, weak to marginal, but I nevertheless proceed to the question of balance of convenience.

9 The object of injunctive relief of this kind is to preserve the subject matter of the litigation. The earlier differences of opinion between judges of this Division as to the basis of the jurisdiction has been laid to rest. I refer, in particular, to the very useful summary of the present position at paragraph [11] of the judgment of Campbell J in Grisonic v Suttor [2004] NSWSC 137; (2004) 12 BPR 22,797;

“Concerning other statutes where courts have a power to change the property rights of parties, it is recognised that the court can grant an interlocutory injunction to protect the subject matter of the suit. When a claim is made under the Family Provision Act 1982 the Court has power to grant an interlocutory injunction requiring property that might be the subject of an order to not be disposed of until the suit is heard. This is a particular example of the Court’s jurisdiction to preserve the subject matter of a suit pending the hearing: In the Estate of Gough, Deceased; Gough v Fletcher (1973) 5 SASR 559; Rayner v Schuttler (Supreme Court of New South Wales, McLelland J, 29 January 1985, unreported); Packo and Another v Packo ( 1989) 17 NSWLR 316; Moon v Gordon (Supreme Court of New South Wales, Young J, 30 April 1996, unreported); Lo Surdo v Public Trustee [2003] NSWSC 837 (Gzell J). In Deguara v Mercieca (Supreme Court of New South Wales, 23 August 1988, unreported) Powell J expressed doubts about the existence of such a jurisdiction, but Deguara was not followed in Packo . The Family Court of Australia can grant an interlocutory injunction under s.114 Family Law Act restraining a party from disposing of the property of the parties pending the institution of proceedings seeking a property settlement under s.79: In the Marriage of Sieling (1979) 4 Fam LR 713; (1979) 24 ALR 357; In the Marriage of C A Rennie and J Higgon (1981) 7 Fam LR 715. As well, the Family Court can grant an injunction to restrain a party from instituting proceedings in another court which would adversely affect the right of a party to seek a property settlement under the Family Law Act : In the Marriage of Esmore (1979) 5 Fam LR 762; In the Marriage of Bak (1979) 6 Fam LR 411; In the Marriage of Smith and Saywell (1980) 6 Fam LR 245; Dembitzer v Mills [1980] 2 NSWLR 697 at 702. All these cases are examples of interlocutory injunctions to preserve the subject matter of the suit. On a similar basis, it would be possible for a plaintiff seeking orders under s.20 Property (Relationships) Act to obtain an interlocutory injunction, in appropriate circumstances, to prevent an application under s.66G from being made or proceeded with concerning property over which orders were sought under s.20 Property (Relationships) Act .”

10 I must therefore ask whether there is any apparent threat to the subject matter of the suit, that is to say, in practical terms, the Manly Vale property.

11 The plaintiffs point to the fact that they asked the defendant for an undertaking not to dispose of the property. That undertaking was not given. Beyond that, they do not suggest that there is any evidence of apprehension of dissipation.

12 The defendant has lived in the property for seventeen years. She is a lady aged sixty-seven in receipt of the aged pension. There is no apparent threat. I am not persuaded that the refusal to give the undertaking can itself be translated into some kind of threat.

13 The plaintiffs’ case is, as I have put it, weak to marginal. The balance of convenience favours refusal of the relief sought.

14 The application in para 6 of the summons filed on 5 March 2008 is refused with costs.

**********