EQUITY – EQUITABLE ESTOPPEL – Plaintiffs seeking declaration that estate held on trust – claim that deceased promised to leave his estate to the plaintiffs – claim that the plaintiffs acted in reliance of that promise to their detriment –where the evidence does not establish that the plaintiffs assumed the deceased would leave his to estate to them
SUCCESSION – FAMILY PROVISION AND MAINTENANCE – No provision made for plaintiffs under the will – domestic relationship between the second plaintiff and deceased – adequate provision for the proper maintenance, education or advancement in life of the second plaintiff not available under the will – order for provision made
CONTRACT – LOANS – Claim for repayment of loan moneys – judgment consented to – judgment ordered in respect of first plaintiff
Evgenia Armouti and Evgenia Giannarou as administrators of the estate of the late Constantinos Armoutis (Defendants)
Representation:
Counsel
W Sharwood (First and Second Plaintiffs)
D Moujalli (Defendants)
Solicitors
Maliganis Edwards Johnson (First and Second Plaintiffs)
McInnes Wilson (Defendants)
File Number:
SC 435 of 2019
Crowe AJ:
Introduction
The plaintiffs, Michael and Stella Nenes, are brother and sister. To avoid confusion, I will refer to them and their deceased parents by their first names. Likewise, in relation to members of the Armoutis family, including the late Constantinos Armoutis who was referred to throughout the hearing as “Con”. No disrespect is intended towards any individual by adopting this approach.
Michael was born in November 1961. He is thus 59 years of age. Stella was born in May 1964. She is currently 56 years of age. Their parents were Alexandros (Alex) and Joana Nenes. Joana died on 15 September 2005 and Alex died on 25 November 2009.
Con was born on 29 August 1937. He died on 2 May 2018. He had not married and he had no children. His nearest relatives were his siblings,…
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.
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Details
AGLC
Nenes v Armouti [2021] ACTSC 53
Case
[2021] ACTSC 53
Decision Date
CaseChat Overview and Summary
In the case of Nenes v Armouti, the plaintiffs, Michael and Stella Nenes, sought relief against the estate of the late Constantinos Armoutis on three bases. Firstly, they claimed that Con had promised to leave them his estate, which he failed to do. Secondly, they claimed that they were eligible persons under the Family Provision Act 1969 (ACT) (FPA) and that each should receive an order for provision to be made for them out of Con’s estate. Thirdly, they claimed for repayment of the loans they made to Con between 2012 and 2018. The court rejected the equitable estoppel claim. It found that Michael and Stella did not assume that Con would leave them his estate and did not act in reliance on any representations made by Con to that effect. The court found that Michael was an eligible person under the FPA and that adequate provision for his proper maintenance or advancement in life was not available under Con’s will. The court ordered that the sum of $360,000 be paid to Michael from the estate of the late Con Armoutis. The court also found that Stella should recover one half of the $20,000 which she and Michael had paid to Con, and which had not been repaid by the time of his death, together with interest at the rate of 5% from the date of Con’s death to the present.