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Panagopoulos v Panagopoulos

Panagopoulos v Panagopoulos

Case [2022] NSWSC 1151 30 August 2022

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Panagopoulos v Panagopoulos [2022] NSWSC 1151
Hearing dates: 1 – 5, 8 March 2021; 14, 16 – 17 March 2022
Date of orders: 30 August 2022
Decision date: 30 August 2022
Jurisdiction: Equity
Before: Robb J
Decision:
The orders of the Court are:
(1) Order that the plaintiff's claims in his second further amended statement of claim be dismissed.
(2) Declare on the cross claimant's cross claim that the cross claimant is entitled to be paid $13,824 out of the estate of the deceased, and that the cross claimant has a charge over the estate to secure that payment.
(3) Order the plaintiff to pay the defendant/cross claimant's costs of the proceedings on the ordinary basis.
(4) Order that, to the extent that the defendant does not recover from the plaintiff his costs of the proceedings, those costs be paid out of the estate of the deceased on the indemnity basis.

Catchwords:
SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Family Provision Act 1982 (NSW) — proceedings not commenced within time — whether sufficient cause shown to extend time — plaintiff commences proceedings impugning rectification order of this Court rectifying last will of the deceased — Court discovers during hearing that plaintiff became bankrupt between events of relevant claims and commencing of proceedings — only claim surviving bankruptcy is family provision application — proceedings brought almost 18 years out of time — attempt to show sufficient cause for delay premised on plaintiff’s alleged ignorance as to interest in deceased’s estate — plaintiff found to have known of life interest in residential property over a decade before bringing proceedings — prejudice to other beneficiaries occasioned by deterioration in plaintiff’s position over time — costs of dismissed claims to be borne by plaintiff — costs of proceedings disproportionate to size of estate — costs incurred largely by plaintiff’s actions — plaintiff not granted leave to bring proceedings out of time — Court would not otherwise have found that adequate and proper provision not made for plaintiff — Court would not otherwise have exercised discretion to order further provision

Legislation Cited:
Bankruptcy Act 1966 (Cth), ss 58, 153A, 154
Conveyancing Act 1919 (NSW), s 66G
Family Provision Act 1982 (NSW), ss 6, 7, 9, 14, 16
Succession Act 2006 (NSW), ss 58, 59, 72, Sch 1 cl 11
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), s 4
Uniform Civil Procedure Rules 2005 (NSW), rr 36.15, 36.16, 42.1

Cases Cited:
Bassett v Bassett [2021] NSWCA 320
Choras v Farmakidis [2020] NSWSC 367
Haertsch v Whiteway (2020) 102 NSWLR 386; [2020] NSWCA 133
Last v Lewis [2022] NSWSC 791
McLeod v Johns [1981] 1 NSWLR 347
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; [1990] HCA 45
Page v Hull-Moody [2020] NSWSC 411
Stojanovski v Stojanovski [2019] NSWSC 1713
Stojanovski v Stojovski [2016] NSWSC 976
Union-Fidelity Trustee Co of Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Panagopoulos v Panagopoulos

Details

AGLC: Panagopoulos v Panagopoulos [2022] NSWSC 1151
Case: [2022] NSWSC 1151
Decision Date: 30 August 2022

CaseChat Overview and Summary

In the case of Panagopoulos v Panagopoulos, the deceased’s adult child sought family provision from the estate under the Family Provision Act 1982 (NSW). The proceedings were commenced almost 18 years out of time, raising questions about whether sufficient cause was shown to extend the time limit. The Court discovered during the hearing that the plaintiff had become bankrupt between the relevant claims and the commencement of the proceedings, and the only surviving claim was the family provision application. The plaintiff attempted to argue that there was sufficient cause for the delay based on their alleged ignorance of their interest in the deceased’s estate. However, the plaintiff was found to have known of their life interest in the residential property over a decade before bringing the proceedings. The Court also found that the delay had prejudiced other beneficiaries due to the deterioration in the plaintiff’s position over time.

The legal issues before the Court were whether sufficient cause had been shown to extend the time limit for the family provision claim, and whether the Court would have exercised its discretion to order further provision in the plaintiff’s favour if the claim had been timely brought. The Court held that the plaintiff’s knowledge of their interest in the estate and the significant delay in bringing the proceedings constituted a substantial impediment to the fair administration of justice. The Court further found that the delay had caused prejudice to other beneficiaries, and the costs of the dismissed claims were to be borne by the plaintiff. The Court determined that the plaintiff was not granted leave to bring the proceedings out of time and that the Court would not otherwise have found that adequate and proper provision had not been made for the plaintiff. The Court would also not have exercised its discretion to order further provision.

In summary, the Court dismissed the plaintiff’s family provision claim due to the significant delay in bringing the proceedings and the prejudice caused to other beneficiaries. The Court found that the plaintiff’s knowledge of their interest in the estate and the substantial impediment to the fair administration of justice constituted sufficient grounds to deny leave to bring the proceedings out of time. The Court further held that it would not have exercised its discretion to order further provision in the plaintiff’s favour if the claim had been timely brought. The plaintiff was ordered to bear the costs of the dismissed claims, and the costs of the proceedings were found to be disproportionate to the size of the estate, largely incurred by the plaintiff’s actions.

Orders