Papantoniou v Foundouradakis

Case [2023] NSWSC 1374


Supreme Court


New South Wales

Medium Neutral Citation: Papantoniou v Foundouradakis [2023] NSWSC 1374
Hearing dates: 21, 22 September 2023
Date of orders: 21 November 2023
Decision date: 21 November 2023
Jurisdiction:Equity
Before: Meek J
Decision:

Order made for provision (parties to bring in Short Minutes of Order)

Catchwords:

SUCCESSION — Family provision — Moderate sized estate ($1.6M property less liabilities of $35,000, sale costs and costs) — Estate left to deceased’s 3 adult children — Claim by one of 6 grandchildren who had resided with his grandmother (the deceased) for lengthy periods — Various issues raised including the extent of the plaintiff’s contributions and his financial circumstances in particular his income and expenses — Plaintiff claims provision for accommodation and fund for contingencies but without any evidence bearing upon these matters — Claims for provision outlined in submissions rejected in light of absence of evidence — Provision for advancement in life and contingencies given

SUCCESSION — Family provision — Factors warranting

SUCCESSION — Family provision — Contingencies — Discussion regarding nature of orders for provision and contingencies

SUCCESSION — Family provision — Form of provision — Cross-examination demonstrated plaintiff engaged in online gambling activities — Provision ordered in the form of funds to be held on trust

Legislation Cited:

Family Protection Act 1908, (No 60 of 1908) (NZ)

Succession Act 2006 (NSW)

Testator’s Family Maintenance Act 1900, 64 Vict, c 20

Testator’s Family Maintenance and Guardianship of Infants Act1916 (NSW)

Cases Cited:

Allardice v Allardice [1911] AC 730

Aroney v Aroney (Supreme Court (NSW), 26 July 1988, BC8801702, unrep)

Barnaby v Berry [2001] NSWCA 454

Bosch v Perpetual Trustee Co Ltd [1938] AC 463

Chan v Chan [2016] NSWCA 222; (2016) 15 ASTLR 317

Collings v Vakas [2006] NSWSC 393

Collins v McGain [2003] NSWCA 190

Colosi v Colosi [2013] NSWSC 1892

Cringle v Cringle [2018] NSWSC 1558

Dodds v Dodds [2013] NSWSC 1933

Dunne v Dunne [2013] NSWSC 1911

Elliott v Elliott (Court of Appeal (NSW), Kirby P, Glass and McHugh JJA, 24 April 1986, BC8601072, unrep)

Elliott v Elliott (Supreme Court (NSW), Powell J, 18 May 1984, unrep)

Estate of Leahy (Dec’d); Earl v Moses [1975] 1 NSWLR 246

Evans v Levy [2011] NSWCA 125

Field v Inglis (Supreme Court (NSW), Young J, 8 February 1994, BC9402261, unrep)

Foundouradakis v Papantoniou [2023] NSWSC 662

Fricano v Lagana [2009] NSWSC 840

Hampson v Hampson [2010] NSWCA 359

In re Allardice; Allardice v Allardice (1910) 29 NZLR 959

Jodell v Woods [2017] NSWSC 143

Kusumo v Kusumo [2014] NSWSC 1704

Le v Angius [2022] NSWSC 240

Mallitt v Gow [2022] NSWSC 1012

Maria Oliveira by her tutor Ivo De Oliveira v John Antonio Oliveira [2023] NSWSC 1130

Mayfield v Lloyd-Williams [2004] NSWSC 419

Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331

Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 24

Porthouse v Bridge [2007] NSWSC 686

Public Trustee v Bellotti (1986) 4 BPR 9196

Radzyminski v Radzyminski [2008] NSWSC 239

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AGLC
Papantoniou v Foundouradakis [2023] NSWSC 1374
Case
[2023] NSWSC 1374
Decision Date

CaseChat Overview and Summary

The matter of Papantoniou v Foundouradakis involved a dispute over the distribution of a moderate-sized estate, valued at approximately $1.6 million after accounting for liabilities and costs. The deceased had left the estate to her three adult children, while one of her six grandchildren, Papantoniou, sought a provision under the Family Provision Act. Papantoniou claimed that he had made significant contributions to the deceased during her lifetime and had resided with her for extended periods. He argued for provision for accommodation and a fund for contingencies, but did not provide any evidence to support these claims.

The court was required to determine whether Papantoniou's claims were substantiated and whether any provision should be made under the Family Provision Act. This involved assessing the nature and extent of his contributions to the deceased, his financial circumstances, and the reasonableness of his claims for provision. The court also needed to consider whether a provision for contingencies was appropriate and, if so, what form it should take.

The court found that Papantoniou had not provided any evidence to substantiate his claims for accommodation and contingencies. Therefore, these claims were rejected. However, the court acknowledged that Papantoniou had made some financial contributions to the deceased and that he had resided with her for lengthy periods. In light of these factors, the court ordered a provision for Papantoniou in the form of funds to be held on trust. The court noted that Papantoniou had engaged in online gambling activities, which was revealed during cross-examination. This factor was taken into account in determining the appropriate form of the provision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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