Nenes v Armouti
[2021] ACTSC 53
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nenes v Armouti |
Citation: | [2021] ACTSC 53 |
Hearing Dates: | 9 – 12 March 2021 |
DecisionDate: | 12 April 2021 |
Before: | Crowe AJ |
Decision: | See [164] |
Catchwords: | 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 |
Legislation Cited: | Court Procedures Rules 2006 (ACT), Schedule 2 Domestic Relationships Act 1994 (ACT), s 3 Legislation Act 2001 (ACT), ss 139, 142 |
Cases Cited: | Bullivant v Holt [2012] FamCA 134 Camernik v Reholc [2012] NSWSC 1537 Williams v ATM & CPA Projects Pty Ltd [2015] NSWSC 703 |
Parties: | Stella Nenes (First Plaintiff) Michael Nenes (Second 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, George and Evgenia. George lives in Greece. Evgenia died in September 2019. Until then she had lived in Greece. The beneficiaries of Evgenia’s estate are her children, George Konstantinos Armoutis and Chrysoula Konstantinos Armoutis.
Alex and Joana had migrated from Greece to Australia some time before 1970. Con had separately migrated from Greece in the 1960s. Con, Alex and Joana commenced working together in partnership in various shop businesses from the early 1970s. This continued until the end of Joana’s life. Thereafter Con and Alex continued the business as partners until Alex died. From 2005 to 2009, Con and Alex ran the Sunrise Food Bar at Alinga Street, Canberra City. They also owned several commercial properties around Canberra. Con lived with the Nenes family at their Hackett residence from 1998. He remained at that residence until Alex’s death in 2009.
When Alex died, he left a will leaving his estate to Michael and Stella in equal shares. Thus, for a time after Alex’s death Con, Michael and Stella owned the Sunrise business and the commercial properties in partnership. That partnership was ended by dissolution and sale agreements dated 14 April 2011. As a result of those agreements Con owned, and ran, the Sunrise business from that time. He took sole ownership of the Alinga Street premises where the business was conducted, and also Unit 4 at the Pearce Shops. Michael and Stella became equal owners of Units 5 and 6, Pearce Shops and also a warehouse at Mitchell in the ACT.
Con operated the Sunrise business until 2015 when he had to cease due to failing health.
Con had made a will in 1999 (dated 28 April) leaving his whole estate to Alex. If Alex predeceased him, the estate was to go to Michael and Stella. However, on 8 April 2009 Con made a new will in which he left his estate to George and Evgenia in equal shares as tenants in common. Notwithstanding these gifts, he appointed Michael as his executor. (Michael renounced the executorship on 1 August 2018.)
The Estate
Con’s estate consisted of the Alinga Street Property, his residence in Archer Street, Dickson and Unit 4, Pearce Shops. The parties have agreed that the present value of the properties totals $2.42 million. Taking into account some other assets and the liabilities of the estate, including legal fees, the net value amounts to approximately $1.62 million.
The Plaintiffs’ Claims
Michael and Stella claim relief on three bases.
Firstly, they claim that on many occasions between 2009 and 2018 Con said to them words to the effect that he would leave them his estate, and that he would, during his lifetime, pay the plaintiffs to make up for the unequal division of assets in 2011. The plaintiffs say that they acted in reliance on the truth of those representations. In paragraph [14] of their Statement of Claim they summarise the steps taken by them as follows (where the reference to the “first plaintiff” is to Stella, and the “second plaintiff” is to Michael):
a. the plaintiffs paid money to the deceased;
b. the plaintiffs loaned money to the deceased;
c. the plaintiffs paid money on behalf of the deceased to retire debts of the deceased;
d. the plaintiffs agreed to the division of the partnership assets unequally, where the division favoured the deceased;
e.the plaintiffs took no action to enforce the proper distribution of partnership income, when the distribution (controlled by the deceased) favoured the deceased;
f.the plaintiffs sold property at Mitchell in the Australian Capital Territory to financially support the deceased;
g. the first plaintiff took a redundancy package from her employment;
h.the second plaintiff gave up his employment and became a full-time carer for the deceased;
i.the plaintiffs deferred making decisions about the businesses to provide the deceased with the financial and work lifestyle that he desired.
The plaintiffs’ pleading asserts that Con did not fulfil the promises made in his representations, thereby giving rise to an entitlement to equitable relief.
Secondly, the plaintiffs claim that they are “eligible persons” under the Family Provision Act 1969 (ACT) (FPA). Each seeks an order for provision to be made for him/her out of Con’s estate pursuant to the provisions of that Act.
Thirdly, the plaintiff’s claim for repayment of the loans they made to Con between 2012 and 2018. These loans are said to total $100,000.
The Evidence
The plaintiffs relied on the following:
(a)Two affidavits of Michael dated 3 February 2020 and 5 March 2021 respectively (part of Ex “P1” and Ex “P2”);
(b)Two affidavits of Stella dated 3 February 2020 and 5 March 2021 respectively (part of Ex “P1” and Ex “P2”);
(c)Affidavit of Nick Toufexis dated 31 January 2020 (part of Ex “P1”);
(d)Affidavit of Sonia Nauomidis dated 29 January 2020 (part of Ex “P1”);
(e)Affidavit of James Stavrinos dated 30 January 2020 (part of Ex “P1”);
(f)Affidavit of Nickolas Vasilou dated 31 January 2020 (part of Ex “P1”);
(g)Affidavit of Othon Sarantos dated 31 January 2020 (part of Ex “P1”);
(h)Affidavit of Cecily Karrys-Stahl dated 3 February 2020 (part of Ex “P1”).
Michael, Stella and Nick Toufexis were required for cross-examination.
The defendants relied on:
(a)Affidavit of Vinoj Thushara Udyakumara Wijesundara dated 7 May 2020 (part of Ex “D1”);
(b)Affidavit of James Archondis dated 26 March 2020 (part of Ex “D1”);
(c)Affidavit of Dimitra Psychogios dated 11 May 2020 (part of Ex “D1”);
(d)Affidavit of Ioanna Apostolopoulou dated 26 May 2020 (part of Ex “D1”);
(e)Affidavit of Keith Arthur Bradley dated 8 December 2020 (part of Ex “D1”);
(f)Affidavit of Evgenia Giannarou dated 22 December 2020 (part of Ex “D1”).
(g)Affidavit of Katie Binstock dated 10 March 2021 (Ex “D12”); and,
(h)Affidavit of Katie Binstock dated 12 March 2021 (Ex “D14”).
Mr Wijesundara was required for cross-examination.
In addition to the above affidavits, the defendants tendered a number of records which were the subject of cross-examination of the plaintiffs and Mr Toufexis. They consisted of the following:
(a)Schedule summarising the net rental income of Michael from the Mitchell property and Units 5 and 6, Pearce Shops (Ex “D2”);
(b)Folder of financial and employment records relating to Michael (Ex “D3”);
(c)Email and attachments from Toufexis & Co to Michael dated 27 July 2018 (Ex “D4”);
(d)Email and attachments from Toufexis & Co to “Jim” dated 27 July 2018 (Ex “D5”);
(e)Letter from K Bradley to Michael dated 8 April 2009 (Ex “D6”);
(f)Schedule summarising the net rental income of Stella from the Mitchell property and Units 5 and 6, Pearce Shops (Ex “D7”);
(g)Folder of financial and employment records relating to Stella (Ex “D8”);
(h)Email from Toufexis & Co to Michael and Stella dated 22 March 2010 (Ex “D9”);
(i)Undated file note of N Toufexis in relation to obtaining independent advice (Ex “D10”);
(j)Undated handwritten file note of N Toufexis in relation to the partnership “split” (Ex “D11”); and,
(k)Patient Health Summary relating to Con dated 14 January 2021 (Ex “D13").
The Estoppel Claims
The plaintiff relied on the decision of Brennan J in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 428-429 as setting out the following requirements for the plaintiffs to succeed in an equitable estoppel claim. It was necessary for them to establish that:
(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs.
In the circumstances of this case, the analysis of whether the plaintiffs have established an equitable estoppel in relation to the disposition of Con’s estate require the determination of whether:
(a)Michael and/or Stella assumed that Con would leave them his estate in his will.
(b)That assumption was induced by Con, having made clear and unambiguous representations to them to that effect.
(c)It was reasonable in all of the circumstances for Michael and/or Stella to have acted on the assumption. This necessarily involved consideration of their knowledge as to the fact that ordinarily a person may change his/her will at any time. There is a crucial difference between a statement of present intention in relation to a will and a statement amounting to a promise or assurance which might create equitable rights; see per Handley AJA in Delaforce v Simpson‑Cook [2010] NSWCA 84; 78 NSWLR 483 at [36].
(d)Michael and/or Stella did act in reliance on the representations made by Con as to his will. It would be sufficient to succeed for the plaintiffs (or either of them) to show that Con’s representations constituted a significant causal factor in the decision to act (or not act) in reliance on the representations; see Sidhu v Van Dyke [2014] HCA 19; 251 CLR 505 at [71]-[73].
(e)Con intended Michael and/or Stella to act (or refrain from acting) or knew that either one had so acted (or refrained) in reliance on the assumption.
(f)In acting, or refraining from acting, Michael and/or Stella suffered a detriment such that it was unconscionable for Con not to have left them his estate as he said he would.
It is necessary to address each of these issues by reference to the evidence.
Did Michael and/or Stella assume that Con would leave his estate to them?
Both Michael and Stella say in their affidavits that they were “shocked” to discover that Con had left them nothing in his will. They both maintained in the affidavits that Con had told them many times that he would leave them his property.
The defendant took issue with the belief claimed by the plaintiffs. Mr Moujalli, who appeared for the defendants, cross-examined both plaintiffs about events in 2010 leading up to the partnership dissolution. It is likely that the plaintiffs were put on notice as early as April 2009 that Con had made changes to his will. On 8 April 2009 Keith Bradley, who was acting as Con’s solicitor at that time, wrote to Michael advising that Con had revised his will on that date. Although the letter (which is Ex “D6”) did not provide details of the gifts contained in the new will, it did advise Michael that he had been appointed as executor and trustee.
Before turning to the evidence given by Michael and Stella under cross-examination on this issue, it is necessary to make some general comments about their testimony.
In the course of cross-examination on the first affidavit affirmed by each plaintiff it became clear that there were many paragraphs in the two affidavits which were identical. The explanation given by the plaintiffs for this was that the two of them had worked together preparing the draft affidavits. Michael could not type so Stella typed both draft affidavits. They discussed with each other what they were going to say and then agreed on a particular form of words.
By reference to this conduct (and some further conduct involving Mr Toufexis and the plaintiffs) Mr Moujalli submitted that I should reject their evidence as unreliable. He relied particularly on comments by Ball J in Williams v ATM & CPA Projects Pty Ltd [2015] NSWSC 703 where his Honour said:
[4]Before setting out the relevant background, it is necessary to say something about the affidavit evidence given by Mr Morison and Mr Williams. Both depose to a number of conversations they had with Mr Merhi in almost identical terms. Both denied that they had discussed their evidence with one another. I accept those denials. However, the likelihood is that the remarkable similarity between the evidence given by them arises from the fact that their affidavits were drafted by the same solicitor who chose the words in which to express the conversations each say he was a party to. Each witness was then asked to agree that those words represented the witness’s recollection of events, which each did.
[5]As McLelland CJ in Eq explained in Watson v Foxman (1995) 49 NSWLR 315 (at 318‑319) when considering oral representations, evidence of oral statements given some years later need to be treated with considerable caution because recollections fade and may be altered by subsequent events. That problem is exacerbated in this case by the way in which the evidence of Mr Morison and Mr Williams was obtained. I have concluded that little weight can be placed on their evidence except to the extent that it is inherently probable, corroborated by documents or objective facts or involves admissions.
It is highly undesirable in a case concerning contested factual events that parties and/or witnesses put their heads together to formulate their evidence. At one extreme, of course, such conduct might amount to outright concoction. At the other extreme it may be a relatively innocent means of cross-checking the accuracy of differing memories. However, even in the latter case, such conduct calls into question the integrity of the evidence.
It seemed to me that both Michael and Stella were surprised by the questioning about the commonality of their affidavits. I infer that neither of them was aware that they should not have been collaborating in the production of their draft affidavits. It is disappointing that the solicitor who was acting for the plaintiffs at the time did not bring to their attention the undesirability of collaboration in the drafting of statements or affidavits.
Having regard to the collaboration, I commence from a starting point of approaching the evidence of each plaintiff with considerable caution. In that regard, I should say that I found Michael to be a person who was not at all sophisticated in relation to the legal process. He readily agreed with propositions stated in affidavits in the course of cross‑examination in circumstances where, in my view, he did not fully understand what he was agreeing with. I wonder whether this was because in affirming his affidavit he was merely adopting something which had been written by Stella. Notwithstanding these caveats, Michael made a number of admissions against his own interest, particularly in relation to the estoppel and loan claims. Although I have doubts as to his reliability in relation to the events which occurred in 2010 and 2011, I largely accept his evidence as to his relationship with Con, and as to the care and assistance he provided to him from 2015. I will return to this in discussing the FPA and loan claims.
I found Stella to be an unimpressive witness. She was often uncooperative and even evasive. At times she appeared to be attempting to work out where the cross‑examination was going and providing answers which might assist her case. Overall, I propose to treat her testimony in a similar way to which Ball J treated the evidence of the witnesses discussed in the above extract from Williams v ATP & CPA Projects Pty Ltd.
Mr Moujalli was also critical of the evidence given by Mr Toufexis. Mr Toufexis is an accountant who was a long-term friend of the plaintiffs. He had gone to school with Stella. When he was young, he regarded Michael as an older brother. He had known Con from a young age through the Nenes family. From about 2008 he became the accountant and tax agent for Con and Alex, and then for Con, Michael and Stella. He continued as Con’s accountant up to the end of the 2013-2014 tax year.
Mr Toufexis said in his affidavit that he was present at the offices of Bradley Allen in 2009 when Con was instructing Keith Bradley that he wanted to change his will to leave everything to his family in Greece. He did not know the reason for that change. He did not say anything to Michael or Stella about it because he saw it as a private matter.
In cross-examination Mr Moujalli took Mr Toufexis to Exhibits “D4” and “D5”. These were copies of emails sent from Mr Toufexis to Michael and “Jim” (the late Jim Stavrinos, who had been a friend of both Con and Michael) respectively on 27 July 2018. In each case a copy of an early draft of Mr Toufexis’ affidavit was attached. Mr Toufexis agreed that he had sent the draft affidavits so that Michael would know what evidence he could give at court, should he commence an action. He said he sent them to “… help get the affidavit right, to see what everyone’s recollections were … [i]ncluding Jim and Michael.”
Mr Moujalli submitted that this evidence confirmed an active attempt by the plaintiffs, Mr Toufexis and perhaps Jim Stavrinos to reconstruct the events which had occurred many years ago. This provided an added reason for treating their evidence as unreliable.
It is unfortunate that these witnesses consulted each other about the evidence to the extent suggested by these emails. However, I infer from the draft affidavits that these were prepared by Mr Toufexis himself, probably before the plaintiffs had consulted their solicitor. Certainly, it does not appear that a solicitor had prepared the drafts. Again, it seemed to me that Mr Toufexis was simply unaware of the undesirability of collaborating in relation to the preparation of evidence for a legal proceeding. Overall, I found him to be a straightforward witness who did his best to answer the questions put to him honestly.
In the course of the cross-examination, Mr Moujalli put to Mr Toufexis an undated file note which was probably made sometime in 2010 (Ex “D10”). The note recorded advice to Con, Michael and Stella to obtain separate, independent legal and accounting advice about the partnership split due to a potential conflict of interests. It was further recorded that all parties did not see a conflict and did not want to incur the extra time and costs involved in seeking such advice.
Mr Toufexis agreed that he had made the file note, and that he had provided advice in those terms to Con, Michael and Stella. He also agreed that he was conscious of any risk of conflict of his duties as an accountant and that he would have considered his position if he had heard one of the partners misleading the others. Thus, in the knowledge that Con had changed his will in 2009, it was suggested that if he had heard Con tell Michael and Stella that he would leave his estate to them, such a statement would have required him to consider whether he could continue to advise all three in relation to the partnership dispute. Mr Toufexis agreed with that proposition. He also agreed that he could not now recall having to turn his mind to that issue at the time when he was acting for the three partners.
Having made that concession, however, Mr Toufexis did recall that Con had said in the presence of Michael and Stella words to the effect that he would leave them his estate. It seems likely, in the light of the concession, that such occasions had occurred after the partnership split in April 2011.
Mr Toufexis was taken to the file note made by Keith Bradley on 11 November 2010. That note is at Annexures “A” and “B” to Mr Bradley’s affidavit (which is part of Ex “D1”). That note recorded a telephone attendance by Mr Bradley on Mr Toufexis to discuss the partnership split (while the file note was made on 11 November 2010, the phone call occurred on 9 November). Mr Bradley recorded that Mr Toufexis had been in extensive negotiations between Con, Michael and Stella in relation to the property adjustments to be made as a result of Alex’s death. Numbered paragraph [2] of the file note reads:
The negotiations have been heated and came to a head when Con … revealed to Michael and Stella … that they would not be beneficiaries under his Will. Con having no wife and no children apparently intends to leave his estate to relatives in Greece. Michael and Stella do not want [to] deal after Con’s death with his family in Greece.
Mr Toufexis was asked by Mr Sharwood, counsel for the plaintiffs, whether he recalled the conversation with Mr Bradley. He said that he did not. He was asked whether he had made a statement to Mr Bradley to the effect of that extracted above. Mr Toufexis said that he did not make such a statement. He would have remembered if he had because Con had told him to keep the changes to his will private and that is what he had done. He did not think that Con had revealed the substance of the change to Michael and Stella.
In cross-examination Mr Toufexis agreed that he was relying entirely on his memory in giving the above answers. He had not found his own file note of that telephone attendance on Mr Bradley, although he conceded that he had not specifically looked for that note prior to giving evidence. He agreed that it would not have been a breach of confidence to discuss Con’s will with Mr Bradley who was Con’s solicitor. He agreed that that fact undermined the reason he had given for why he would have remembered if he had said words to that effect to Mr Bradley.
Each of Michael, Stella and Mr Toufexis were cross-examined about a meeting which had occurred at a dialysis unit at Garran where Con was receiving treatment. In his original affidavit Michael said that the meeting occurred around “the end of 2010”. Stella said that the meeting occurred during the 12 months after Alex’s death. Both Michael and Stella said that the purpose of the meeting was to discuss Con’s plans for the Sunrise Food Bar business. Each affidavit contained the following sentences:
I recall Nick advised Con that he should consider leasing the property to a tenant and Con … became agitated. I recall Con stated words to the effect that he is coping and is making up for time lost by working the late shift and that we should have nothing to worry about because whatever he owns will be left to us in his Will.
In the course of the cross-examination of Stella it transpired that she had located an email record relating to that meeting. Mr Moujalli called for a copy of that record. It was produced and eventually tendered into evidence as Ex “D9”. The email exchange recorded in that exhibit commences with a message from Stella to Mr Toufexis on 19 March 2010. The subject is described as: Meeting Tuesday 23 March @ 4.00pm – Alex Nenes Estate
The message commences with the following statement:
I believe that it is important to get things right from the outset and have advised the solicitors to hold off transferring dad’s share into our name until we have met with the accountant and the banks financial advisers. Is there another professional body that you can recommend seeing?
Stella notes that the meeting is to occur at the Community Dialysis Satellite Centre at Garran, and that she had cleared having the meeting there with the dialysis unit. She then identifies the issues to be included in the agenda. These related to the various options and tax implications relating to possible actions in relation to the Sunrise Food Bar and the various commercial properties owned by the partners. The first item on the agenda was: Establishing who is the beneficiary of Con’s WILL? (The word “will” is in capitals in the message.)
Mr Toufexis responded to the message from Stella on 22 March 2010. His message simply referred to “draft agenda and sheets”. It attached an Excel file identified as “23‑3‑2010 agenda”. When printed out the attachment set out columns of assets and liabilities, the debts and repayment amounts, and a column for the rents and expenses of various properties. There were a number of further items listed for discussion. The first of these was in identical terms to the first item on the agenda in Stella’s email. Under those words were added “nick to suggest”.
In Michael’s second affidavit he referred to the meeting as having occurred in March 2010. When he was asked about this in cross-examination he said that he and Stella had gone to see Mr Toufexis in September or October 2020 and Mr Toufexis had found in his diary an entry for the meeting having occurred in March 2010.
In her second affidavit Stella said that the meeting had occurred in “about April 2010”. Under cross-examination she initially said that she had identified the date from an email from Mr Toufexis which she had recovered from an old computer. However, on further questioning she agreed that she and Michael had asked Mr Toufexis about the date at a meeting with him in September or October 2020. Stella said that she did not remember when she obtained the email. In response to questions as to why she had not mentioned the September/October 2020 meeting with Mr Toufexis when first asked about the alteration in the meeting date, she claimed not to have remembered that meeting. Stella added that it might have been her solicitor who first spoke to Mr Toufexis about the date of the dialysis unit meeting. She denied having spoken to Michael about the evidence he had given. She also denied that she, Michael and Mr Toufexis had been discussing the evidence they would give at the 2020 meeting.
When Stella was first asked about whether she knew in 2010 that a person could change his/her will at any time she denied such knowledge. However, after further questioning she admitted that she did in fact know that to be the case.
Mr Moujalli pressed Stella as to the purpose of the March 2010 meeting. Stella maintained that the purpose was to discuss the Sunrise Food Bar business. She claimed that when she was first asked about the meeting, she had forgotten what was in the agenda documents (Ex “D9”). She said that she had asked Mr Toufexis about the meeting when she and Michael saw him in September/October 2020 because she was trying to recall what they had discussed at the 2010 meeting. Notwithstanding that, she said that when it came to preparing her second affidavit (dated 5 March 2021) she “didn’t really pay much attention” to the contents of the agenda.
Upon further questioning about the agenda item referring to Con’s will, Stella maintained that the agenda items were not discussed at all at the 2010 meeting, other than the Sunrise Food Bar. She rejected the suggestions made by Mr Moujalli that Michael and she had asked Con to change his will in their favour at that meeting, and that it had been that request that had caused him to become agitated.
I found Stella’s evidence about the 2010 meeting to be unsatisfactory and not credible. Moreover, I have concerns about the accuracy of Michael’s recollections stated as it is, in identical terms to those of Stella. I do not accept the accuracy of their recollections.
It seems far more likely that the sequence of events reflected in the contemporaneous documents (Exhibits “D6”, “D9” and Mr Bradley’s file note of 11 November 2010 which is annexed to his affidavit) is that Michael and Stella became concerned about the contents of Con’s will, having become aware that some change had been made to it in April 2009. After the death of their father, that concern was sharpened by the possibility that, upon Con’s death, they might find themselves in a business relationship with unknown persons.
It was this concern, together with the need to work out what to do with the jointly owned assets after Alex died, which led to the March 2010 meeting. It is likely that either at that meeting or on some subsequent occasion (but before 9 November 2010) that Con did disclose that he had changed his will to leave his estate to his relatives in Greece. It is also likely that Con’s agitation arose because of the insistence by Stella and Michael upon bringing the partnership to an end with the need to divide assets and debts. I do not accept that Con said at the 2010 meeting words to the effect claimed by the plaintiffs.
It seems likely to me that Michael and Stella were well aware of the possibility that Con could change his will at whim. Indeed, it is likely, and I so find, that the primary reason for the partnership split was that recorded by Mr Bradley in paragraph [2] of his file note of 11 November 2010. (In that context it seems to me that Mr Toufexis has forgotten the events leading to, and the contents of, his conversation with Mr Bradley on 9 November 2010.)
However, having reached that conclusion I should say that I accept that Con did say at various times after April 2011 words to the effect that he would leave his estate to Michael and Stella. It accords with the natural probabilities given the close relationship Con had had with the Nenes family since the early 1970s, to the extent that he was regarded as part of the family. The fact that he was accustomed to make statements along those lines is corroborated by the evidence of Mr Toufexis (which I accept on this issue), Mr Stavrinos and Mr Vasilou.
The fact that Con might have said such things is one thing. The creation of an expectation or assumption that he would act in that way is another. Having regard to what had occurred in the period of 2009 to 2011, I simply do not accept that Michael and Stella truly believed that at any stage Con was making a binding undertaking to leave them his estate. They were well aware that he could, at any time, react to issues in their ongoing relationship to dispose of his estate as he saw fit. In that regard, I see it as likely that the change put in place in April 2009 came about because, rightly or wrongly, Con did not like the steps which Michael and Stella were taking in relation to the care of Alex and perhaps the management of his affairs in the last year of his life.
It follows from the above that the equitable estoppel claim must fall at the first hurdle. However, I will deal with each of the other elements of that claim in case I am wrong about this issue.
Did Con make clear and unambiguous representations as to what was to happen with his estate or as to making good the “shortfall” in the partnership split?
There is no contemporaneous written evidence of any representations made by Con. Having regard to my findings as set out above, it seems likely that from time to time after April 2011 Con did say words to the effect that he would leave Michael and Stella (or on some occasions, Michael) his estate. However, the evidence does not suggest that these words were said in a formal way associated with a particular action or step which Con wished either plaintiff to take so as to suggest he intended to bind himself not to revoke or change his will (it being assumed that, by that time, his will accorded with the representation).
Rather, it seems likely that Con made these comments in a general way to emphasise the gratitude he felt at the care and support being provided, particularly by Michael, in his later years. It might have been in his mind to encourage Michael to continue providing that support, however, I do not consider that the statements were made in a manner or in circumstances calculated to cause either Michael or Stella to make any significant changes in their financial arrangements or in their lives generally.
In relation to the allegation that Con would pay the plaintiffs the difference in the partnership division over time through the business, I do not accept that Con made a statement in those terms. It is, in my view, highly improbable that if he had made such a statement that a term to that effect would not have been included in the dissolution agreement and/or the sale of business agreement.
Did the plaintiffs act (or refrain from acting) in reliance on the assumption and if so, was it reasonable for them to have done so
The case advanced by the plaintiffs was as pleaded in paragraph [14] of the Statement of Claim (see [10] above). I will briefly deal with each item separately.
I do not accept that the plaintiffs paid money to Con in reliance on any assumption about his will. This was frankly admitted by Michael in the course of his cross-examination in the following exchanges:
And everything that you say you did for Con, you weren’t doing that because of anything that he had said to you about his will. That’s correct, isn’t it?---Correct.
You were doing it because you considered him part of your family; correct?---Correct.
And you were doing it because when your mother died you promised to her that you would look after Con. That’s the case, isn’t it?---That’s the case.
… Even if Con did not say anything to you about his will you would still have done everything that you did for him in his later years; correct?---Correct.
I reached the firm view in relation to Michael that he truly regarded Con with love and affection. He provided money, care and support out of love and affection, and not because of any assumption that he was going to benefit from Con’s estate.
The situation with Stella was a little different. In relation to the money advanced to Con, she felt the need to formally document that as a loan. That led to Con being asked to sign the document in October 2013 which is at Annexure “SN5” to Stella’s first affidavit (and also Annexure “MN5” to Michael’s first affidavit). That document contains an acknowledgement by Con that he had received by that time a total of $45,000 by way of loan moneys, none of which he had repaid. Michael said that he had not kept a record of the moneys advanced to Con. He said the following about the signing of the document:
So asking Con to sign a document of this nature was something foreign to him or alien? It's just not the sort of thing that family members do?---I wouldn't say that it was foreign. It was something that he knew that my sister was the difficult one and she did those sorts of things for her own recordkeeping.
Well, no matter what her motives were, Con was offended by it; correct?---No, he didn't like it. I wouldn't say he was offended but he didn't like it.
Michael later said that the moneys advanced to Con were not really loans. He said:
Mr Nenes, can you first answer my question? Are you now saying that they weren't loans?-‑-Con - when Con was in trouble and he needed money, the money was given to Con. But as loans, the loans came - it was something that we put together after Con died.
Although Michael in later questions tried to maintain that the moneys were paid as loans consistent with the contents of his affidavits, it seems to me that he responded truthfully in the course of re-examination:
This morning you were asked some questions about the moneys that were advanced to Con totally [sic] $100,000 and you were asked a question about whether you were expected to be repaid for [sic] those moneys?---I wasn't expected to be repaid of [sic] those moneys.
In contrast with Michael’s expectation, Stella did see the moneys advanced to Con as repayable. She said in cross-examination:
You wanted a record of those loans in the event that you had to claim the loans back from either Con or from his estate. That's the case, isn't it?---Yes.
Because if you had been led to believe by Con that you would inherit his estate you would have had no need for this record, would you, Ms Nenes?---That's correct.
And you wanted this record because you hadn't been led by Con to believe that you would inherit his estate?---There was something - - -
That's the case, isn't it?---There was something that I felt wasn’t quite right.
These responses strongly mitigate against Stella having been induced to advance moneys to Con based on the assumption that she would inherit under his will. Indeed, it is consistent with her suspicions about Con’s intentions in relation to his will that when Michael asked her about using the proceeds from the sale of the Mitchell property to repay Con’s investment loans, she refused. It may be that the fact that she had ceased working by that time was a factor, however, I consider that her doubts about Con’s intentions were also a factor in that decision.
I come to the same conclusion for the same reasons in relation to the allegations in 14a. and b. of the Statement of Claim.
In relation to the allegation that the plaintiffs agreed to an unequal partnership split which favoured Con due to the representation about his will, I have concluded that no such representation had been made prior to April 2011 and, in any event, the plaintiffs were not acting in reliance on such. (I should say that there is also some doubt as to whether in truth there was an unequal distribution of partnership assets. In that regard I refer to the evidence of Mr Toufexis at T234 l41-44, and the contents of Mr Bradley’s 11 November 2010 file note.)
The same comments apply to the allegation that the plaintiffs refrained from taking action to enforce the “proper distribution” of the partnership income.
As for the sale of the Mitchell property, Michael admitted under cross-examination that the sale of Mitchell had nothing to do with anything Con might have said about his will (see T 109 l20). Indeed, Mitchell was sold because a good offer was made at a time when the rental income had dropped off.
Stella confirmed in cross-examination that at the time the plaintiffs received the offer to purchase Mitchell, the property was un-rented and that it could be difficult to lease (T213 l2-5). She agreed that the price of $950,000 was a very good one at the time. Mr Moujalli pointed out to Stella that in recounting the reasons for the sale of Mitchell in her first affidavit she had said nothing about having been induced by any representation by Con about his will. However, in her second affidavit the following paragraph appeared:
147. When we sold the property in Mitchell, Con said the following words or words to the effect of the following:
Con:“I wish that it was me giving you the money to help you and not the other way around, but everything I own will be yours one day, so you don’t need to worry.”
When asked why the important words “but everything I own will be yours one day” were not in her first affidavit (relevantly, in paragraphs [72]-[74]) Stella was unable to provide an explanation. In response to the proposition that she had added those words because she thought it might help her case Stella answered “I don’t know. I don’t know.”
I do not accept that the decision of the plaintiffs to sell the Mitchell property was in reliance upon any relevant representation made by Con.
Nor do I accept that the first plaintiff took a redundancy package from her employment with the APS in reliance on any such representation. Indeed, in her answers to Mr Moujalli in cross-examination, Stella agreed that the redundancy offer was a very attractive one. It would provide her with a significant tax-free lump sum. Also, there was a tax advantage for her in accepting the redundancy before the end of the 2015-2016 tax year in the event of the sale of Mitchell, due to the capital gain which she would have to include in her tax return for the 2016-2017 tax year. Stella conceded that her acceptance of the redundancy had nothing to do with a desire to assist Con financially.
In relation to the allegation at 14h. of the Statement of Claim, that he gave up full-time employment to become a full-time carer of Con in reliance upon the alleged testamentary representations, Michael’s responses extracted in paragraph [62] above demonstrate that there was nothing in this assertion. It is fair to say that the plaintiffs went beyond the facts in any event. While Michael undoubtedly spent considerable time caring for and assisting Con from 2015 onwards, he also kept up some part-time work both in his own business and also for another business.
Finally, in relation to the allegation at 14i., I am unable to discern in the evidence any proper basis for a finding in favour of the plaintiffs on this ground. As I understood the case, it was suggested that the relevant period of deferral was the 17 months or so after Alex died. Having regard to the findings I have made about what occurred during that period, this claim could not possibly succeed.
Having regard to my findings of fact, it is not necessary to address in detail the reasonableness of each alleged act of reliance. Suffice to say that, having regard to the circumstances in 2009-2011, and the circumstances of each such act, I reject the proposition that it would have been reasonable for either Michael or Stella to act in reliance on any of the statements made by Con about his testamentary intention.
Con’s intention or knowledge of reliance
I have adverted to Con’s intention in making statements about his will in paragraph [59] above. It seems to me that that is the highest point of the plaintiffs’ case on this cause of action. The issue of knowledge of reliance cannot arise, given my conclusion that there was no such reliance.
However, a finding that Con did wish to encourage Michael’s loyalty is, by itself, insufficient to make out even Michael’s case, given that the statements did not operate to cause him to change his position.
Detriment
Having rejected the claims of reliance it follows that the claimed detriments must fall away. If either Michael or Stella suffered any real detriment, having regard to the circumstances as I have found them, it was not unconscionable for Con not to have left his estate to the plaintiffs.
Family Provision Act Claims
In order to have standing to make such a claim, each plaintiff must fall within the eligibility requirements of s 7 of the FPA. It is common ground that the only arguable provision which might extend to the plaintiffs is s 7(1)(b), which provides:
(1)Subject to this section, each of the following persons is entitled to make application to the Supreme Court for provision out of the estate of a deceased person:
...
(b)a person (other than a partner of the deceased person) who was in a domestic relationship with the deceased person for 2 or more years continuously at any time;
Under s 7(9) of the FPA “domestic relationship” is defined by reference to s 3 of the Domestic Relationships Act 1994 (ACT). That section relevantly provides:
(1) …
domestic relationship means a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other …
(2)For subsection (1)—
(a) a personal relationship may exist between people although they are not members of the same household; and
(b) a personal relationship is not taken to exist between people only because one of them provides a service for the other—
(i) for fee or reward; or
(ii) on behalf of another person (including a government or body corporate); or
(iii) on behalf of an organisation the principal objects or purposes of which are charitable or benevolent.
It is clear that given their long and close associations there was a “personal relationship” between each of Michael, and Stella, and Con. The issue to be determined in relation to each plaintiff is whether, in all of the circumstances, each provided “personal or financial commitment and support of a domestic nature” which was for Con’s “material benefit” and that such commitment and support continued unbroken for two years or more at any time.
The width of the part of the definition of domestic relationship relevant here was explored by Stone J in Mackenzie v Storer [2007] ACTSC 88; 1 ACTLR 183. That case did not concern a FPA claim. However, her Honour discussed at some length the antecedents of the definition. After referring to ss 139 and 142 of the Legislation Act 2001 (ACT) she said:
57. The Domestic Relationships Act has received academic praise for its broad scope and as representing a movement towards a more fluid concept of relationships governed by redistributive law. One of the distinguishing features of the Act is its inclusion of non-sexual relationships; see, for example, Goodie and Summerfield, ‘What’s In A Name? Family, Identity and Social Obligation’ (2002) 6 University of Western Sydney Law Review 209. As Connolly J, who - as Attorney-General of the ACT - was responsible for the introduction of the Domestic Relationships Act, observed in Davies v Hawthorn [2004] ACTSC 119 at [3], the category of relationships covered by the Act is broader than that under de facto relationships legislation in other jurisdictions. In Crellin v Robertson (2004) 32 Fam LR 406, Crispin J remarked at [24] that “a person may have one relationship with a domestic partner, another with an elderly parent whom he or she supports in a nursing home and a third with another parent who lives in a granny flat attached to his or her residence. Yet all might fall within the broad ambit of this definition.”
58. Despite this, a survey of the decided cases reveals that the majority concern sexual relationships; see, for example, Beuth v Blums [2005] ACTSC 44; Prymas v Whittaker [2006] ACTSC 48; Ferris v Winslade (1998) 22 Fam LR 725; Crellin v Robertson (2004) 32 Fam LR 406; Kempe v Webber (2003) 31 Fam LR 332. For discussions of the types of relationships that have been the subject of applications under the Act, see Millbank, ‘Domestic Rifts: Who is using the Domestic Relationships Act 1994 (ACT)?’ (2000) 14(3) Australian Journal of Family Law 163 and Summerfield, ‘Understanding the Law of the Family: A Question of Practice, Not Interpretation’ (2002) 11(1) Griffith Law Review 44.
59. Neither the explanatory memorandum nor the second reading speech is of any great assistance in determining the meaning of “support of a domestic nature”. The Attorney-General, in outlining who would be eligible to apply for relief under the Domestic Relationships Act, informed the Assembly that:
A domestic relationship includes not only those who live in traditional de facto relationships but also relationships where one party at least provides a personal or financial commitment and support of a domestic nature for the material benefit of the other. Whether there is or has been a sexual relationship between the parties is thus an irrelevant consideration. The common factor for applicants will be their contribution to financial resources of another, and that alone.
60. During debate in the Assembly, Mr Humphries for the Opposition expressed concern that the legislation might be read to include flatmates, live-in domestic employees, people living in halls of residence, or volunteers working on behalf of community groups and, although he noted the difficulties of giving statutory expression to such concepts, expressed the view that “the essential element that we are looking for to make a relationship a real domestic relationship of the sort that we are talking about here is either deep personal affection or love”, (see ACT, Legislative Assembly, Debates (1994) p 1803). In response, the Attorney-General accept that this was an important element in a domestic relationship and stated, at ACT, Legislative Assembly, Debates (1994) p 1809:
There are concerns about the breadth of the definition. Yes, it is drafted in a broad way because we do not want to focus on just sexual relations. We do want to catch the broader range of domestic relations, but you do look for the motivation. [Emphasis added]
61. The Domestic Relationships Act grew out of a discussion paper, A Proposal for Domestic Relationship Legislation in the ACT, circulated by the Attorney General’s Department in 1993; Ferris v Winslade (1998) 22 Fam LR 725 at [19]. It was expected that, in interpreting the Act, the courts would have reference to this paper; see ACT, Legislative Assembly, Debates (1994) p 1803. The preface to the discussion paper emphasises the breadth of the relationships it was anticipated would be covered:
People in domestic relationships may include those caring for an ill or aged parent or friend, grandparents providing a home for their grandchildren, or others who have committed themselves to the welfare of someone at their own expense…
… the relationship is to involve a commitment which goes beyond friendship and neighbourliness – flatmates, people living in group houses, employed live-in housekeepers and other domestic employment, and those living in halls of residence for employees or students would not normally be entitled to seek relief.
62. The Discussion Paper suggested, at [102], that the words “beyond friendship or neighbourliness” could be included in the definition of “domestic relationship” if it were intended to restrict the relationships covered to “family-type” relationships. This suggestion was not implemented.
63. It is plain that the Act was intended to have a broad application but it must be that the phrase, “support of a domestic nature”, has some operation, and that necessarily must be to exclude relationships that do not have this quality. The term, “domestic” is not defined in the Act or in the Legislation Act 2001 (ACT). The Macquarie Dictionary definition includes “having to do with the home, the household, or household affairs”.
There are a number of decisions of Faulks DCJ in the Family Court of Australia which dealt with applications under the Domestic Relationships Act. These matters were dealt with pursuant to the cross-vesting legislation, presumably because of the marriage-like nature of the relationships in question. In Bullivant v Holt [2012] FamCA 134 (Bullivant) his Honour noted (at [9]) that the Domestic Relationships Act, unlike similar legislation in other Australian jurisdictions, did not require parties to have lived together for there to have been a domestic relationship. After finding that there was a personal relationship between the parties his Honour said (with emphasis in the original):
17. “Personal” and “financial”, separated by the word “or”, are alternatives not conjunctives. Thus, in order to make a finding of a domestic relationship, it is not necessary that there be both personal and financial commitment and support; it is sufficient that there be either personal commitment and support or financial commitment or support. Personal commitment and support does not require the provision of any money. An example of this may be where someone looks after an ageing parent without any financial contribution from the parent to the carer.
At paragraph [19] Faulks DCJ commented that while it may be more difficult to infer personal commitment and support of a domestic nature where parties were not living together, that did not mean that that such commitment and support might nevertheless have been given. The parties in Bullivant had not lived together on any long-term basis. However, his Honour considered the various aspects of their relationship and concluded that the applicant had provided the relevant personal commitment and support to the respondent.
His Honour then turned to the question of whether that commitment and support had provided a “material benefit” to the respondent. His Honour said:
70. … The inclusion of the word “material” in s 3 would suggest that this is to exclude ‘random acts of kindness’ or the like.
71. The word “material” is defined in the Macquarie Dictionary only as a noun but “materially” is defined as:
1. to an important degree; considerably. 2. with reference to matter or material things; physically 3. Philosophy with regard to matter or substance as distinguished from form.
72. In the Shorter Oxford English Dictionary “material” is given an adjectival meaning. That is:
… Of much consequence; important…
73. In combination it might be suggested that “material” must mean something of consequence or something that is significant or important.
(Footnotes omitted.)
In the course of considering the nature of any benefit provided to the respondent, his Honour commented at [74]-[75] (the emphases appearing in the judgment):
74. It is perhaps easier to determine financial commitment and support as of some consequence. What is more difficult to determine is whether personal commitment and support were of a material benefit.
75. Some personal support is objectively observable, for example nursing care and support …
His Honour concluded:
83. On balance I find that there was a domestic relationship in this matter. It is a matter of balance – in this case, a fine balance – but the legislation is enabling or facilitative in nature and, in my opinion, should be construed wherever it is reasonable to do so, as facilitating a finding that a domestic relationship existed (see also paragraph 132 of these Reasons). In finding that a domestic relationship existed, I am perhaps employing an “intuitive synthesis” of the factors before me. No one factor was determinative, but all taken together with the benefit of seeing and hearing the parties lead me to find that a domestic relationship did exist between the parties.
I agree with the approach taken by his Honour and specifically with his comments in paragraph [83]. It is clear that the purpose of the definition in s 3 of the Act was to broaden the range of relationships which might give rise to the possibility of a party obtaining a remedy upon the breakdown of a particular relationship.
In this case, I am comfortably satisfied that Michael provided personal commitment and support of a domestic nature to Con for a period exceeding two years. I accept Michael’s affidavit evidence that from about mid-2015, apart from the days on which he was working, he spent many hours each day with Con as a carer. The defendants challenged the extent of Michael’s assistance in reliance on the evidence of Mr Wijesundara. Mr Wijesundara was a friend of Con’s who, after the breakdown of his marriage in 2014, moved in with Con at his residence in Archer Street, Dickson. Although he did not pay rent, he did pay the utility bills.
In his affidavit Mr Wijesundara expressed his belief that Michael had ceased full-time work with iPlay in 2015 as the result of a back injury which he suffered that year. He also said that, to his observation, Con would cook breakfasts and dinners for Michael, not the other way round. He said that he had never seen Michael give Con financial assistance. He also said that he had not seen Michael provide domestic assistance to Con, other than purchasing groceries, arranging Con’s appointments and arranging modifications to the bathroom and toilet.
In relation to Stella, Mr Wijesundara said that, to his observation, she visited Con irregularly, about once per month. She only visited when Michael was there. She would always bring food. He saw her as “making a big show” about Con’s health. He did not observe Stella assist Con with his business affairs.
Mr Wijesundara was cross-examined. He said that he had worked for TPG doing field work of some kind from 2013 to the end of 2017. His hours were 8am to 4:30pm. He worked all around Canberra. After 2017, he commenced a Master Degree in Engineering, and also retail work at Coles and K-Mart. He confirmed that he understood only a few words of Greek. He agreed that Con would discuss his health issues with Michael. In response to the proposition that Michael and Stella had a close relationship with Con, Mr Wijesundara said “I’m not sure but with Michael, yes.” He agreed that he was not at home all of the time. He also agreed that after Con’s heart surgery, Michael was at Con’s home regularly every day, and that Con and Michael would often watch Greek TV together. He maintained that Con did his own laundry and that he always cooked.
Mr Wijesundara agreed that Stella could have visited Con on occasions when he was not there. However, he maintained his evidence about Stella making a show. He explained it in this way:
What do you mean 'make a show'?---Yes, Michael visited and he at least take him to the hospital. But Stella didn't do anything, so I make feel like he's - she's keep asking question from Michael about Con's status and then react like that way. That's what I saw.
He denied that he disliked Stella. He confirmed that she did visit and comfort Con, and that they had a close relationship since her childhood.
Mr Wijesundara did provide some insight as to why Con had failed to leave anything to Michael and Stella in his will. In response to a question as to whether Con was always pleased to see them, he said:
To my observation I think Con has some mindset about these two people because of the property matter. So I was saying like Con say to me personally he had a big problem because of the - they asked the property - I mean his father's share, so then Con get some bank loan or something, I don't know, from the bank and that's why he work hard in the shop six days per week without sleeping.
Although Con spoke to Mr Wijesundara along the lines summarised above on many occasions, he did not do so in the presence of Michael or Stella.
Overall, I formed a favourable impression of Mr Wijesundara as a witness. It seemed to me that, although he felt some loyalty to Con, he did make concessions when it was reasonable to do so.
However, the fact of the matter is that Mr Wijesundara had his own work and studies to attend to. It seems to me that there may well have been occasions when Michael was assisting with various domestic tasks, as he said he did, when Mr Wijesundara was simply not there. I note that Michael’s back injury in fact occurred sometime before May 2014 when he underwent a fusion of the L4/L5 level. Indeed, I infer that the injury probably occurred in the car accident which occurred in September 2013. Mr Wijesundara’s perception of Michael giving up full-time work in mid-2015 appears to me to be incorrect.
It seems more probable that Michael passed up the opportunity of full-time work with iPlay to care for Con. In that regard, I also refer to the notation on Con’s Health Summary (Ex “D13”) which refers to “Michael Nemes [sic] carer [phone number] current 30/10/2015”.
Overall, I accept as accurate Michael’s detailed description of the support and assistance he provided to Con as set out in his second affidavit at paragraphs [63]-[131]. I also accept that he did provide irregular financial aid as he testified, in addition to the larger payments which I will discuss below in relation to the loans claim. It is likely that Mr Wijesundara was simply unaware of Michael’s financial contributions. I consider that Con would not have disclosed them, having regard to his intention to repay Michael if he could, and perhaps due to embarrassment at his lack of liquid funds.
Having regard to the nature and extent of Michael’s commitment to and support of Con, I have no doubt that it conferred a material benefit on Con. The commitment and support also extended well over the required two years.
In relation to Stella, she claimed in her first affidavit that she had overseen Con’s business affairs for approximately nine years. This included chasing rental arrears, liaising with his bank manager and real estate agents, and attending strata AGMs.
Stella said that in the last three years of Con’s life she would visit him weekly and would buy groceries for him. She said that she would prepare meals for him, however he did not really like her cooking. She would visit him when he was in hospital and would buy household linen for him when he needed it.
In her second affidavit, when responding to Mr Wijesundara’s affidavit, Stella said that between 2010 and 2018 she visited Con irregularly because she was in a relationship, and because of her work. However, she did visit more often after 2015. She said that when he was in hospital, she would visit him almost every day. She would take him cheese and biscuits because she believed that he was particularly fond of cheese.
Under cross-examination Stella further retreated from the assertions in her first affidavit. I refer to the following exchanges:
To say that you oversaw his business affairs, that is an exaggeration. Do you accept that?‑‑-It is an - I would say - yes, I would say it is an exaggeration but I did help Con.
It's also an exaggeration to say that you did it for nine years, correct?---It was around that. From the time that my father died, if Con had any queries, he would come to me and discuss them.
You told his Honour yesterday that in the period between when your father died and April 2011 - you told his Honour that Con was managing the joint property finances. That was your evidence yesterday, wasn't it?---We're talking about the money side of matters, yes.
I'm sorry, Ms Nenes, can you explain that?---Well, what I mean by that is that he would - whatever monies he was making, he was banking. I didn't have any involvement in that. I was more involved in the operational side of his business.
If I can finally take you to what you say in your second affidavit about the assistance that you provided to Con. Do you still have your second affidavit in front of you, Ms Nenes?---I do, yes.
Can I take you to page 8 of your second affidavit?---Yes.
In paragraph 82 you say, 'I assisted Con with his business and personal financial affairs on a regular basis.' That is what you have said?---That's correct.
The words 'a regular basis' are an exaggeration. That's correct?---I would probably say whenever it was required.
I also found her evidence about the frequency of her visits to Con at his home unconvincing. Her responses under cross-examination were:
You say in paragraph 71 that you visited Con - - -?---Yes.
- - - once a week. Is that your evidence?---That's my evidence.
Are you saying you average something like 50 visits each year to Con? Is that your evidence?---Well, it's - it changed, like, when he was not working in 2015. It was more regular, so I would have addressed it there. So more often around that time, but it was intermittent. Like I - it was irregular. Sometimes I would once a week, sometimes it would be twice a week, sometimes it would be once a fortnight. It was irregular.
In actual fact, Ms Nenes, your visits to Con were more like once a month. Correct?---No, that's not correct.
I do not doubt that Stella did visit Con out of natural affection. I also accept that from time to time she assisted him in his business affairs. However, having regard to the reservations I have about her evidence generally, I do not accept that whatever she did for him was sufficient to amount to personal or financial commitment and support of a domestic nature which conferred a material benefit on Con. It follows that she does not have standing to claim under the FPA.
Having found that Michael is an eligible person under the FPA it is necessary to address the provisions of s 8 FPA. Relevantly, they are:
(1)On application by a person entitled, under section 7, to apply for provision out of the estate of a deceased person, the Supreme Court may order that the provision as that court thinks fit be made for the applicant out of the estate.
(2)The Supreme Court shall only make an order under subsection (1) if satisfied, in consideration of the criteria set out in subsection (3), that as at the date of the order, adequate provision for the proper maintenance, education or advancement in life of the applicant is not available—
(a)under the will of the deceased; or
(b) if the deceased died intestate—under the law applicable to that intestacy; or
(c)under that will and that law combined.
(3)The criteria for the Supreme Court’s decision under subsection (2) in relation to the deceased and the applicant are as follows:
(a)the character and conduct of the applicant;
(b)the nature and duration of the relationship between the applicant and the deceased;
(c)any financial and non-financial contributions made directly or indirectly by or on behalf of either or both the applicant and the deceased to the acquisition, conservation or improvement of any of the property or financial resources of either or both persons;
(d)any contributions (including any in the capacity of homemaker or parent) by either the applicant or the deceased to the welfare of the other, or of any child of either person;
(e)the income, property and financial resources of the applicant and the deceased;
(f)the physical and mental capacity of the applicant, and the deceased (during his or her life), for appropriate gainful employment;
(g)the financial needs and obligations of the applicant and the deceased (during the life of the deceased);
(h)the responsibilities of either the applicant or the deceased (during his or her life) to support any other person;
(i)the terms of any order made under the Domestic Relationships Act 1994, section 15 with respect to the property of the applicant or the deceased;
(j)any payments made to either the applicant or the deceased by the other, under an order of the court or otherwise, in respect of the maintenance of the other person or any child of the other person;
(k)any other matter the court considers relevant.
I approach Michael’s claim by first determining whether adequate provision for his proper maintenance, education and advancement in life is not available under Con’s will. This determination must be made having regard to the criteria set out in s 8(3). An order under s 8(1) can only be made if it is determined that the required provision was not made in the will. This is the “two stage” process described by Mason CJ, Deane and McHugh JJ in Singer v Berghouse (1994) 181 CLR 201.
There is a useful summary of the approach to be taken to the words “adequate” and “proper” contained in the judgment of Hallen J in Hogan v Hogan [2013] NSWSC 1405 which I adopt for the purposes of this case.
I accept that the concepts of “moral duty” or “moral obligation” as discussed in Vigolo v Bostin [2005] HCA 11; 221 CLR 191 (Vigolo) remain relevant. However, I am conscious that those concepts must not supplant the application of the specific language of the statute. In that context, I address each of the criteria set out in s 8(3).
Michael’s character and conduct (s 8(3)(a))
Whatever disagreements occurred in the aftermath of Alex’s death, Michael showed himself to be loyal and caring supporter of Con in his declining years. His personal and financial contributions to Con’s welfare were those that one might expect from a child who has remained close to his/her parent during that child’s adult life. Indeed, Michael, in the course of cross-examination, said that he assisted Con because “he was wholly and solely part of my family for 40 years” and because he “genuinely loved the man”. I had no doubt that Michael was honestly expressing what he felt about Con when he gave that evidence.
Nature and duration of relationship between Michael and Con (s 8(3)(b))
To some degree this is already addressed in the preceding paragraph. Mr Sharwood for the plaintiffs submitted that the relationship should be seen as being in the nature of a parent/child or uncle/niece and nephew relationship. I accept that submission. The reality is that the plaintiffs grew up with Con as, effectively, their third parent. That relationship commenced in the early 1970s and continued, with some ups and downs, until Con’s death.
Financial and non-financial contributions of Con and Michael (s 8(3)(c))
Mr Sharwood argued that, while it is true that the size of Alex’s estate was in part due to the contribution and hard work of Con, in the partnerships between he and Alex and Joana, and then he and Alex after Joana’s death, the converse was also true. That is, Con had benefited to an equal degree from the hard work put in by Alex and Joana over the nearly 40 years that they had run businesses and managed commercial properties together.
I consider there is force in this submission. It seems to me that the partnership contributions largely balanced out over the years.
Mr Sharwood also pointed to the payments made by Michael for Con’s benefit. It was suggested that these made a significant difference to Con’s capacity to own property. As will be seen, I accept that from the time of the loan acknowledgement (October 2013), Michael did make some notable payments to Con to assist him in meeting his debt commitments. These probably totalled around $40,000. Michael made these payments not expecting them to be repaid. Whilst they undoubtedly provided much needed assistance to Con at various stages between 2014 and 2018, I do not consider that those payments were the difference between Con being able to maintain ownership of one or other of his properties, or having to dispose of one or more properties. It seems to me that those payments simply avoided the need for Con to increase his mortgage debt in order to get by.
Nevertheless, the fact that Michael made those payments without any particular expectation that they would be repaid is undoubtedly a relevant factor.
Michael and Con’s contributions to the welfare of each other (s 8(3)(d))
I have found that Michael made very substantial contributions to Con’s welfare in the last three years of his life. It is difficult to see that there was any reciprocal contribution.
Income, property and financial resources of Michael and Con (s 8(3)(e))
Mr Moujalli submitted by reference to Foye v Foye [2008] NSWSC 1305 (per McLaughlin AsJ at [14]-[15]) that the obligation of an applicant for FPA relief is to make full and frank financial disclosure. He submitted that Michael had not made such a disclosure. In cross‑examination Mr Moujalli pointed out to Michael that he had not disclosed in his affidavit evidence that he had received $310,000 from the sale of the family home at Hackett following Alex’s death. Nor had he disclosed what he did with that money. Moreover, he had not disclosed that he had received $275,000 from the sale of Mitchell, nor what he had done with those funds.
Mr Moujalli also questioned Michael about the value of $510,000 he had ascribed to his residence at McKellar. It transpired that Michael had used the sale price of the property next door in May 2015 as a guide. It had sold for $535,000. Michael accepted, having regard to likely market movement, that the figure of $510,000 represented an under‑valuation. Michael agreed that taking all of his assets in Australia into account (less his mortgage debt of $360,000) his net worth was around $900,000. In addition to that, he owned a one quarter share in a property in Athens. That share was worth a little over $40,000.
Michael also confirmed that he had private health insurance. He agreed that he did not have upcoming medical treatment expenses which he could not meet.
Mr Moujalli also asked Michael about his statement in paragraph [106] of his first affidavit. Michael had there said: “I worked for iPlay Australia part-time on weekends until mid‑January 2018. I am not presently working.” He then referred Michael to page 117 of the folder of documents which became Ex “D3”, which was part of Michael’s tax return for 2018-9. That page contained entries indicating that Michael had been employed as a “Manager – amusement centre” by Happy Days Amusements Pty Ltd during 2018-2019. He had received gross income of $6,586 and had claimed car expenses of $3,400 for that financial year.
Michael accepted that the statement as at 3 February 2020 that he was not working was not true. He said that the correct statement in his affidavit was that he was not working at iPlay. In re-examination, Michael said that he would work for one or two hours at a time on a fortnightly or monthly basis to stock machines and clear cash from them.
While it is true that Michael did not disclose the minutiae of past financial transactions, I do not consider that he was actively trying to hide assets from the defendants or the Court. The disclosure which is crucially important is the current position. Apart from the undervaluation of the McKellar residence, Mr Moujalli did not point to any evidence to suggest that the disclosure made at paragraph [204] of Michael’s second affidavit was other than accurate and complete. Indeed, I note that ultimately Mr Moujalli submitted that Michael’s net asset position (including the Athens property) stood at over $950,000.
As to income, Michael’s income at the present consists of JobKeeper payments of $1,000 per fortnight. Those payments cease at the end of March 2021.
As noted at [8] above, it is common ground that Con’s estate has a current net value of $1.62 million.
Physical and mental capacity of Michael (and Con during his lifetime) for appropriate gainful employment (s 8(3)(f))
There is no doubt that Con worked hard and for long hours in running the businesses in which he had an interest for the whole of his working life. There is also no doubt that he had reached the end point of his working life by 2015, if not a little before that year given his long-term reliance on dialysis.
Michael is now 59 years of age. He will be 60 in November this year. His last two tax returns in evidence indicate very small earnings from employment or through the company in which he has an interest, Happy Days Amusement Pty Ltd. Having regard to the surgery on his lower back and his age, I infer that Michael has a significantly reduced physical earning capacity. Of more immediate concern is his heart condition. Michael suffered a heart attack in November 2020. According to that part of his Patient Health Summary that was admitted into evidence (Annexure “A” to Ex “P2”), Michael has suffered a total blockage of his right coronary artery. I note that the attempt to stent through the obstruction was unsuccessful.
Michael said that he is to undergo testing of his heart function at the end of March 2021. He is uncertain as to the future treatment which he might require in that regard.
The financial needs and obligations of Michael and Con during his lifetime (s 8(3)(g))
At this stage, Michael has no particular financial needs or obligation. It is apparent that during the last few years of his life Con struggled with short term liquidity. However, he had substantial assets. He did not have any particular obligations apart from the bank loans which he was required to service.
Responsibility of Michael and Con during his lifetime to support any other person (s 8(3)(h))
This paragraph has no application in the circumstances of this case.
Any order under the Domestic Relationships Act 1994 with respect to Con’s property (s 8(3)(i))
This paragraph has no application in the circumstances of this case.
Any payment made by Michael to Con or vice versa in respect of child maintenance (s 8(3)(j))
This paragraph has no application in the circumstances of this case.
Any other matter that the court considers relevant (s 8(3)(k))
Mr Sharwood submits that the representations made by Con as to what he would leave Michael in his will should be taken into account. He refers to Vukic v Grbin [2006] NSWSC 41 (Vukic) per Brereton J at [38] in support of that proposition. I have found that Con probably did make such statements, but that having regard to the circumstances, they were not such as to cause Michael to act in reliance on them. This should be contrasted with the situation in Vukic where his Honour found that the equitable estoppel case had been made out. He proceeded to deal with the alternative FPA claim at the request of the plaintiff because of the more flexible remedies available under the legislation.
In Vigolo, Callinan and Heydon JJ said at [122]:
... Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and, as here, changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
I also consider that Con’s wish expressed in late 2017/early 2018 to alter his will to leave his estate to Michael (as to which, see Michael’s first affidavit, paragraph [84], and that of Mr Stavrinos, paragraph [14]) should be taken into account.
However, while it does seem to me that it is legitimate to take Con’s statements into account they should, in my view, carry significantly less weight than they would have, had they caused Michael to change his position in some relevant way.
Section 22 of the FPA requires me to have regard to Con’s reasons for omitting Michael from his will, so far as they are ascertainable. While I have inferred that his initial decision in 2009 to change his will was based on his disagreement with Michael and Stella over the care of Alex, and perhaps the management of his property, it is not really possible to determine why Con determined to continue that omission up to the time of his death. Mr Wijesundara suggested in his evidence that Con remained unhappy about the partnership split in 2011. That might explain why he did not revisit the 2009 will. However, the wish referred to in [140] above rather suggests that Con did have second thoughts towards the end of his life. However, he did not act upon them. Overall, I consider that Con’s reasons for Michael’s omission are not sufficiently ascertainable to enable me to take them into account as required by s 22.
As is demonstrated by the extract from Vigolo set out in paragraph [139] above, it is also necessary to take into account the circumstances of the potential beneficiaries of Con’s estate.
There is very little evidence as to the financial and other circumstances of Con’s brother George. Michael and Stella both assert that Con had said to them in 2012 that he did not have a good relationship with George. That may well have been the case. There is no evidence of any ongoing contact between Con and George over the years.
The situation with Evgenia was different. While Michael and Stella may not have been aware of it, I am satisfied from the evidence of Mr Wijesundara and Ms Apostolopoulou (who is the wife of George Konstantinos Armoutis) that Con and Evgenia did maintain regular telephone contact over many years. There was also regular telephone contact between Con and George Konstantinos. Con appointed the latter as his attorney in Greece for property and financial matters. I note that in the power of attorney document George Konstantinos is described as a “Civil Engineer”. Ms Apostolopoulou describes herself as a practising lawyer in Athens.
Apart from the above, there appears to be no evidence as to the age, health, needs, capacities or financial circumstances of George Konstantinos Armoutis or his sister Chrysoula Konstantinos Armoutis. (They are the beneficiaries of the late Evgenia’s estate.)
Consideration – Was adequate provision made?
I approach the evaluation I am required to make on the basis that Michael’s claim should be assessed in a broadly similar manner as if he was Con’s adult child. Given the nature and duration of the relationship, and the fact that Con had no children of his own, that analogy seems to me to be appropriate in this case, although I bear in mind that Michael was not actually Con’s son. It seems to me that the analogy is appropriate having regard to the rather unusual circumstances of this case, and the extended basis of eligibility which I have discussed above. On that basis, I accept the often-quoted principles from the decision of Hallen J in Camernik v Reholc [2012] NSWSC 1537 as providing helpful guidance. His Honour said at [159]:
(a) The relationship between parent and child changes when the child leaves home. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed.
(b) It is impossible to describe in terms of universal application, the obligation, responsibility, or community expectation, of a parent in respect of an adult child. It can be said that, ordinarily, the community expects parents to raise, and educate, their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, where that is feasible; where funds allow, to provide them with a start in life, such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set his, or her, children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation: McGrath v Eves [2005] NSWSC 1006; Taylor v Farrugia [2009] NSWSC 801.
(c) Generally, also, the community does not expect a parent to look after his, or her, child for the rest of the child's life and into retirement, especially when there is someone else, such as a spouse, who has a primary obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death if he or she is able to do so. But where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute: Taylor v Farrugia.
(d) If the applicant has an obligation to support others, such as a parent's obligation to support a dependent child, that will be a relevant factor in determining what is an appropriate provision for the maintenance of the applicant: Re Buckland Deceased [1966] VR 404 at 411; Hughes v National Trustees Executors and Agency Co. of Australasia Ltd [1979] HCA 2; (1979) 143 CLR 134 at 148; Goodman v Windeyer at 498, 505. But the Act does not permit orders to be made to provide for the support of third persons to whom the applicant, however reasonably, wishes to support, where there is no obligation to support such persons: Re Buckland Deceased at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams, at [86].
(e) There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker; Kleinig v Neal (No 2), at 545; Bondelmonte v Blanckensee [1989] WAR 305; and Hawkins v Prestage (1989) 1 WAR 37 per Nicholson J at 45.
(f) The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169 (28 August 2003) at [181], [182]; Crossman v Riedel [2004] ACTSC 127 at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life, is relevant: Marks v Marks [2003] WASCA 297 at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287; Butcher v Craig [2009] WASC 164 at [17].
(g) The applicant has the onus of satisfying the court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd at 149.
Mr Moujalli submitted for the defendants that Michael has a “comfortable degree of financial security”. He argued that the evidence did not establish a lack of sufficient reserves to meet the demands of advancing years or the ordinary vicissitudes of life. On this basis he suggested that Michael had failed to demonstrate that inadequate provision had been made for him.
I do not accept these submissions. While it is true that Michael’s net assets amount to a little under $1,000,000, the reality is that his home represents more than half of this sum. It is not an income producing asset. Also, this figure includes a very modest superannuation fund of $120,000. The reality is that Michael is on the cusp of retirement. He suffers from significant health issues. His income earning capacity is much reduced. His combined employment income over the past several years (extracted from Ex “D3”) was $46,354 for 2016-2017, $12,415 for 2017-2018 and $6,586 for 2018-9. While I take into account that Michael was spending considerable time caring for Con during these years, the trend apparent from these figures must be concerning in regards to a man about to turn 60 who suffers from a bad back and coronary artery disease.
It is also instructive to assess the income generated for Michael by the assets aside from his home and personal property. In 2016-2017 he received $1,984 in interest and $4,708 in net rent from the Mitchell and Pearce properties. In 2017-8 he received $2,179 in interest and $6,188 in net rent from the Pearce properties. In 2018-9 the interest figure was $1,134. He also received $1,714 by way of dividends (inclusive of franking credits) and $1,291 in net rent from the Pearce properties.
It is apparent that Michael would be in dire straits indeed if he becomes unable to work at all in the coming years. Given that he still has a mortgage debt of $360,000, he would have to resort to his capital to defray his ordinary living expenses. Given that, with successful medical treatment, he can expect to live for another 20 years or more there must be a real risk that Michael would exhaust his capital during that time.
In this context, the estate is significant. The beneficiaries are persons who were relatively remote from Con’s life, particularly during his final years, compared with Michael. And there is no evidence as to the relevant circumstances of the beneficiaries.
Having regard to all of the criteria in s 8(3) and the circumstances discussed above, I am satisfied that adequate provision for Michael’s proper maintenance or advancement in life is not available under Con’s will. (Having regard to his age and circumstances I do not see the reference to education as being relevant here.)
What provision should be made?
Having found that adequate provision for Michael was not available, the Court may order such provision as it thinks fit. The authorities demonstrate that this is a discretionary decision based on all of the circumstances of the case. However, I am conscious of the comment of Dixon CJ in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19:
The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator’s decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court.
Mr Sharwood submitted, on behalf of both plaintiffs, that appropriate provision here would be for Michael and Stella to each receive 25% of the estate. No submission was made as to what order would be appropriate should I find, as I have, that only one of the plaintiffs is an eligible claimant under the FPA.
I accept that the correct approach is that stated by Mossop M (as he then was) in Kulczycki v Public Trustee for the ACT [2013] ACTSC 230 at [110] where his Honour said:
The purpose of an order under the Act is not to achieve, in relation to the will, an outcome which is considered to be fair but is instead to achieve an adequate provision for, relevantly, the advancement of the claimant. He is not entitled to have his needs met in full from the estate of the deceased. The order should be no more than is necessary to make adequate provision for his proper advancement in life. Furthermore, I must take into account the entitlement of the deceased to dispose of her property as she did in her will.
Having particular regard to the size of the estate, the absence of evidence as to the situation of the beneficiaries, Michael’s current circumstances, the nature and duration of his relationship with Con and his devotion and care during the last years of the latter’s life, I conclude that provision should be made favour of Michael in the sum of $360,000. In my view that sum, which gives Michael the option of paying off his mortgage, represents adequate provision for the vicissitudes in life which he now faces.
The Loan Claims
In his submissions Mr Moujalli indicated that the defendants were prepared to consent to a judgment of $50,000 plus interest from the commencement of proceedings in relation to these claims.
However, I have found that the advances made by Michael, probably sometime after the signing of the loan acknowledgement document on 1 October 2013, were in the nature of gifts rather than loans. As far as I can determine from the evidence, $20,000 of the moneys paid to Con, having taken into account the $50,000 repayment made by him in October 2014, was paid jointly by Michael and Stella. The remaining $30,000 was paid by Michael only.
As I have taken these payments into account in favour of Michael in consideration of his FPA claim, I do not propose to make any repayment order in relation to the payments made by him.
In relation to the $50,000 payment made by Con, having regard to my rejection of the proposition that Con had said that he would make some payment for the alleged unequal division of assets, I find that it was made by way of repayment of what Stella had insisted were loan moneys advanced to Con before that date. (In that context I place no weight on the handwritten words “Payment towards split of partnership” appearing on the copy of Con’s bank statement at Annexure “SN8” to Stella’s first affidavit. No satisfactory explanation was given as to who wrote those words and when they were written, nor as to the circumstances in which they were written.)
It follows from the above 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, having taken account of the $50,000 repayment in October 2014. In relation to interest, Mr Sharwood submitted that interest should be allowed from no later than the date Con died. There is some force in that submission, given my finding that Stella did regard the payments as loan moneys which she expected to have repaid. Rather than perform the somewhat complicated calculations required under Schedule 2, Part 2.1 to the Court Procedures Rules 2006 (ACT), I propose to award interest at the rate of 5% from the date of Con’s death to the present. This results in the following calculation: $10,000 x 2.9yrs x 5% = $1,450.
Conclusion
I propose to order that provision be made from the whole estate, after the payment of just debts and testamentary expenses, for payment to Michael of the sum of $360,000. Having regards to the terms of s 11 of the FPA, I do not see the need to make any further order in relation to the provision to be made for Michael. I also propose to enter judgment for Stella against the estate in the sum of $11,450. I will hear the parties as to costs.
Orders of the Court
It is ordered that:
1. Pursuant to s 8 of the Family Provision Act 1969 (ACT) the sum of $360,000 be paid to Michael Nenes from the estate of the late Constantinos Armoutis.
2. There be judgment for Stella Nenes against the defendants in the sum of $11,450.
| I certify that the preceding one hundred and sixty-four [164] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: 12 April 2021 |
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