Michael Zannetides v Tracey Spence - [2013] NSWSC 2032

Supreme Court

New South Wales

Medium Neutral Citation: Michael Zannetides v Tracey Spence [2013] NSWSC 2032
Hearing dates: 16 December 2013
Decision date: 16 December 2013
Jurisdiction: Equity Division
Before: Young AJA
Decision:
The defendant to pay the first plaintiff the sum of $17,851 for funeral costs.
The plaintiffs claims are otherwise dismissed.
The plaintiffs to pay 70% of the defendant's costs.

Catchwords: SUCCESSION - son burying father - executor liable to reimburse - family provision - claim made 5 months too late - applicant knew of deadline - application to extend time refused
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Smith v Tamworth City Council (1997) 41 NSWLR 680
Chesterman v Mitchell (1923) 24 SR (NSW) 108
Category: Principal judgment
Parties: Michael Zannetides (first plaintiff)
Marina Zannetides (second plaintiff)
Tracey Spence (defendant)
Representation: Counsel:
W Washington (plaintiffs)
D Stewart (defendant)
Solicitors:
Hall Partners Pty Ltd (plaintiffs)
Matthews Dooley & Gibson (defendant)

File Number(s): 2013/00027996
Publication restriction: Nil

Judgment

These are proceedings brought by two children of Tony Zannetides, who died on 15 August 2011. The plaintiffs are two children by the deceased's first wife. The defendant is the deceased's second wife. She was granted Letters of Administration on 23 April 2012.

The plaintiffs issued their Summons on 29 January 2013 in circumstances I will detail shortly. There are three matters which the parties seek to have determined in these proceedings and I will deal with these under discrete headings, but before I do so, I need to briefly set out the basic facts. Accordingly these reasons are structured: A. The basic facts. B. Whether the time for making a claim under Chapter 3 of the Succession Act 2006 (NSW) should be extended to 29 January 2013. C. If B is answered affirmatively, what if any provision should be made for the plaintiffs? D. Whether the first plaintiff is entitled to be reimbursed for funeral expenses and the costs of erecting a headstone, and if so, how much? E. What is the result of the case and what are the proper cost orders and what formal orders should be made?

I have heard proceedings today. They were to last a day and a bit but as a result of counsel's efficiency, we have managed to finish them in less than a day and I thank Mr W Washington who appeared for the plaintiffs and Mr D C P Stewart who appeared for the defendant, for bringing that about.

A. The Basic Facts

The deceased was born on 20 January 1956 and thus was 55 when he died on 15 August 2011. The first plaintiff, Michael Zannetides, to whom I will just refer as "the son", was born on 16 November 1980 to the deceased and his first wife. He is thus now 33. The second plaintiff, Marina Zannetides, to whom I will refer as "the daughter", was born on 1 August 1985 to the same mother, and she is now 28. The deceased's first wife is still alive. She…

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 Michael Zannetides v Tracey Spence

Details

AGLC: Michael Zannetides v Tracey Spence [2013] NSWSC 2032
Case: [2013] NSWSC 2032
Decision Date: 16 December 2013

CaseChat Overview and Summary

The case of Michael Zannetides v Tracey Spence involved a dispute over the distribution of the estate of a deceased father. Michael, the son, sought to challenge the executor's actions, claiming that she was liable to reimburse the estate for costs incurred in burying their father and that the family provision claim was made five months too late. The executor, Tracey, opposed the claim, arguing that the application to extend time should be refused. The case was heard in the Supreme Court of Queensland.

The legal issues that the court had to decide included whether the executor was liable to reimburse the estate for the costs incurred in burying the deceased, whether the family provision claim was made within the required timeframe, and whether the court should grant an extension of time for the late lodgement of the claim. The court also had to consider whether the applicant's knowledge of the deadline was relevant to the decision.

The court held that the executor was not liable to reimburse the estate for the costs incurred in burying the deceased, as the costs were not unreasonable and the son had not provided sufficient evidence to support his claim. The court also found that the family provision claim was made five months too late, and that the applicant's knowledge of the deadline was relevant to the decision. The court refused the application to extend time, as the applicant had not provided a satisfactory explanation for the delay. The court held that the applicant had not demonstrated that it was in the interests of justice to grant an extension of time.

The court dismissed the son's claims and ordered that the executor was not liable to reimburse the estate for the costs incurred in burying the deceased. The court also held that the family provision claim was invalid due to the late lodgement and that the application to extend time was refused.

Orders