Marinis v Jeweller - [2000] NSWCA 282

NEW SOUTH WALES COURT OF APPEAL

CITATION: MARINIS v JEWELLER [2000] NSWCA 282

FILE NUMBER(S):
40228/2000

HEARING DATE(S): 9 October 2000

JUDGMENT DATE: 17/10/2000

PARTIES:
Antonios MARINIS v John JEWELLER

JUDGMENT OF: Mason P Giles JA Rolfe AJA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 4632/98

LOWER COURT JUDICIAL OFFICER: Master McLaughlin

COUNSEL:
Appellant: J R Wilson
Respondent: M A Gilmour

SOLICITORS:
Appellant: Slattery Thompson
Respondent: Jeweller Peetz

CATCHWORDS:
Family Provision Act 1982 - de facto spouse - adequate provision ND

LEGISLATION CITED:

DECISION:
Orders given 9 October 2000
Reasons given 17 October 2000
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40228/2000
SC 4632/98
MASON P
GILES JA
ROLFE AJA
17 October 2000

Antonios MARINIS v John JEWELLER
JUDGMENT

THE COURT: At the conclusion of the hearing on 9 October 2000 this appeal was dismissed with costs. Our reasons follow.
The appellant failed in a claim under the Family ProvisionAct 1982.
The deceased died in 1997 aged about 93. Following the expulsion of the Greeks from Smyrna (Izmir) she lived in Egypt, then in Greece, before moving to Australia in 1958. Her husband died in 1960 and she had no surviving close relatives.
Her will was made in 1965. She appointed the appellant her executor and gave him £500 absolutely plus £600 to expend in erecting an appropriate head stone. (In fact the appellant spent $8,000 for that purpose.) She gave the residue to her brother George with a gift over, in the event of his death, to his son and daughter. George died in 1979.
Accordingly, the bulk of the estate passed under the will to the deceased’s niece and nephew. Their ties with the deceased were primarily familial because they have always lived in Greece. There were however visits to the deceased in Australia and contact was maintained through telephone and letter. The deceased sent money to her Greek relatives, visited them in 1975, and she was godmother to each. The nephew, Dimitrios Sclavis was born in 1940. He has a dependent wife and two children and he lives in Athens in circumstances that are hardly affluent. The niece, Alexandra Sclavis was born in 1944 and her present financial circumstances are extremely strained.
Probate of the will was granted to the appellant. When he instituted proceedings under the Family Provision Act1982 the respondent was appointed to represent the interests of the principal beneficiaries.
The deceased’s estate at trial (March 2000) included:
An apartment at 10/136 Darlinghurst Road, Darlinghurst valued at $210,000;
A half share with the appellant in an apartment in Athens, each share being presently valued at $85,000;
Cash c$1500.
The respondent asserted that there are additional assets of value, retained by the appellant. As the Master pointed out in his judgment, proceedings under the Act are not the proper way to resolve such disputes.
The costs of a 4½ day trial were about $100,000.
In 1960 the appellant commenced living as…

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 Marinis v Jeweller

Details

AGLC: Marinis v Jeweller [2000] NSWCA 282
Case: [2000] NSWCA 282
Decision Date: 17 October 2000

CaseChat Overview and Summary

The appeal concerned an application for adequate provision from the estate of a deceased person under the *Family Provision Act 1982* (NSW). The appellant, the de facto spouse of the deceased, sought provision from the estate, while the respondent was the executor. The appeal was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether to grant the respondent's belated application for indemnity costs. This application was based on a settlement offer made by the respondent during the pendency of the appeal, which the appellant ultimately failed to achieve a better result than.

The Court noted that while the settlement offer was not formally a *Calderbank* offer, it could still be taken into account for costs. The Court reasoned that the offer was made sufficiently early in the appeal process for the appellant to have reasonably considered it, and that parties should give serious consideration to such offers. However, the Court also acknowledged that the appeal was not entirely hopeless. Balancing these factors, the Court concluded that a special order for indemnity costs was not warranted in the proper exercise of discretion. The appeal was dismissed with costs.

Orders

Orders of the court

Orders given 9 October 2000

Reasons given 17 October 2000

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

There was a belated application for indemnity costs by the respondent. We were referred to a settlement offer made on 13 June 2000, ie during the pendency of the appeal. The offer was not expressed in the form of a Calderbank offer, although that does not preclude it being taken into account on the issue of costs (cf Evidence Act 1995, s131(2)(h)). The appellant has failed to obtain a result better than the offer. The offer was made some three and a half months before the hearing of the appeal by which time, presumably, a substantial portion of the costs of the appeal had been incurred and were incurred whilst the appellant was reasonably entitled to consider the offer. It is necessary for parties to give serious consideration to such offers. Parties who choose to ignore them and do not receive a better result should not assume that an indemnity costs order will not be made. On the other hand parties wishing to make offers, on which reliance for such an order can be placed, should do so early before heavy expense is incurred. In the present case the circumstances to which we have just referred, coupled with the fact that it could not be said that the appeal was completely hopeless, lead to the conclusion that a proper exercise of discretion does not demand a special order for costs.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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