Paul v Satici

Case •

[2022] NSWSC 922

•

08 July 2022

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Paul v Satici [2022] NSWSC 922
Hearing dates: 7, 8 February and 14, 15 June 2022; written submissions received on 13, 15 June 2022
Decision date: 08 July 2022
Jurisdiction:Equity - Family Provision List
Before: Kunc J
Decision:

Additional provision ordered

Catchwords:

SUCCESSION – Family provision – Claim by adult child – Provision sought to purchase a home

Legislation Cited:

Succession Act 2006 (NSW)

Cases Cited:

Anderson v Hill [2017] NSWSC 1149

Camernik v Reholc [2012] NSWSC 1537

Grant v Roberts; Smith v Smith; Roberts v Same; Curtis v Same [2019] NSWSC 843

Mayfield v Lloyd-Williams [2004] NSWSC 419

McGrath v Eves [2005] NSWSC 1006

Category:Principal judgment
Parties:

Esin Paul (Plaintiff)

Erkan Satici (Defendant)
Representation:

Counsel:

JA Trebeck (Plaintiff)
FF Salama; A Smyth (Defendant)

Solicitors:

Harris & Company Solicitors (Plaintiff)
Prime Lawyers (Defendant)
File Number(s): 2020/329643
Publication restriction: No

Judgment

Summary

  1. This judgment determines an application for family provision orders by Esin Paul in relation to the estate of her late father, Yilmaz Satici (the Estate). Without intending any disrespect, the parties will be referred to in this judgment by their given names.

  2. Yilmaz died in February 2020. At the time of his death, he had been widowed for nearly ten years. He was survived by three adult children (Esin Paul, Fisun Katsamatsas and Erkan Satici) and ten grandchildren.

  3. By his will dated 16 August 2012 (the Will), Yilmaz appointed his youngest child, Erkan, as executor. Erkan is the defendant in these proceedings. A legacy of $100,000 was granted to Erkan under the Will but was increased to $300,000 pursuant to a codicil of 6 May 2015 (the Codicil). In what follows, a reference to the Will includes the Codicil.

  4. Under the Will, the residue of Yilmaz’s estate was to be divided:

  1. One quarter to Esin;

  2. One quarter to Fisun;

  3. One quarter to Erkan; and

  4. One quarter to be divided equally among Yilmaz’s ten grandchildren that would vest in each upon any of marriage, turning twenty-five years of age, or the purchase of real estate or a business.

  1. The Court has determined that Esin is entitled to $700,000 in lieu of her quarter share of the residue of the Estate. To the extent that amount exceeds what she would otherwise have been entitled to, the excess is to be borne rateably between Erkan’s share of the Estate (including the $300,000 granted to him under the Codicil) and what would otherwise be Fisun’s quarter share of the residue.

  2. Esin is to have her costs out of the Estate on the ordinary basis as agreed or assessed up to $100,000 or as the Estate may otherwise agree. The Estate is to have its costs on the indemnity basis.

A brief history of the litigation

  1. These proceedings were initially to be heard with two other family provision proceedings against Erkan. The plaintiffs in those proceedings were Fisun Katsamatsas and Alina Paul. Alina is Esin’s daughter and one of Yilmaz’s grandchildren.

  2. Fisun’s proceedings were dismissed by consent on 4 February 2022. On the first day of hearing, settlement was reached in the matter involving Alina. Alina received $200,000 in lieu of her share of the residue as a grandchild. Accordingly, it was only Esin’s case which proceeded to a contested hearing.

  3. Esin’s case was again delayed on the second day of hearing when, during her cross-examination, her solicitors (Birchgrove Legal) and counsel withdrew. The reasons for this are unnecessary to record in this judgment, except to note that the Court makes no adverse comment about the conduct of anyone, including the legal advisers.

  4. An adjournment was granted to allow Esin to retain new legal representatives. She was permitted to discuss the matter with her new legal representatives but remained under oath and could not discuss the substance of the evidence she had given.

  5. The Court also made these orders:

“3. Order that the plaintiff pay the defendant’s costs thrown away by reason of the adjournment, on terms that those costs, as agreed or assessed, are to be deducted from the plaintiff’s entitlement under the will and codicil, including from any further provision which may be ordered by the court in these proceedings.

4. If the plaintiff obtains alternative legal representation, grant leave to the plaintiff, on the resumption of the hearing, to make such application as she may be advised to vary or vacate order 3.”

  1. Immediately prior to the adjournment, Mr Salama on behalf of Erkan made an open offer to Esin in these terms:

  1. $140,000 in addition to her quarter share of the Estate; and

  2. $100,000 towards payment of her legal costs.

  1. That offer remained open until 1:00pm on the following day but was not accepted.

  2. Esin retained new solicitors and counsel and the parties returned to court in June to resume the hearing.

  3. Prior to the adjournment, Mr EP Anderson of Counsel appeared for Esin. Mr J Trebeck of Counsel appeared for Esin at the resumed hearing. Mr F Salama of Counsel with Mr A Smyth of Counsel appeared for Erkan throughout the proceedings.

Value of the Estate

  1. The primary asset of the Estate at the time of Yilmaz’s death was a 99% share of a property at Morshead Drive, Connells Point in NSW (the Connells Point Property). The Connells Point Property was sold in January 2022 with the net proceeds of sale totalling $2,365,055.94. A one percent share of that property belonged to Erkan.

  2. The Estate also included $3,028.15 that was held in an account with St George Bank and monies from various household and personal items.

  3. The parties were agreed as to what was in the Estate and each of their respective costs. The agreed figures were set out in Exhibit 4D which was a document titled “Agreed updating defendant’s schedule of estate assets and liabilities and of gifts pursuant to last will – aide memoire – Estate as at 9 June 2022”. The exhibit stated:

“Gifts/entitlements under the Will

6.   Including the orders made in Alina’s claim, entitlements under the will and codicil are now:

a.   The sum of $300,000 to Erkan

b.   The sum of $120,000 to Alina

c.   25% of the Estate to each of Erkan, Fisun and Esin.

d.   One ninth of the remaining 25% of the residue to each of the nine remaining grandchildren of the deceased (ie, the ten grandchildren less Alina).

7.   Prior to the abovementioned interim distribution, the Estate comprised of $1,760,586.42 + $588,888.00 = $2,349,475,30

8.   The approximate distributable Estate was $2,349,475.30 less:

a.   the Estate’s costs of all three proceedings, being approximately $220,000

b.   Alina’s costs of $80,000

being approximately $2,050,000

9.   Pursuant to the Will (codicil) and Alina’s orders, the following specific entitlements and/or gifts are to be paid from the $2,050,000:

a.   $300,000 sum to Erkan pursuant to codicil (repayment to Erkan).

b.   $120,000 sum to Alina pursuant to Court order

leaving a distributable residue of approximately $1,630,000

10.   ¼ of residue is approximately $407,500.

11.   Each of Erkan, Fisun and Esin is to receive ¼ of residue being approximately $407,500.

12.   Each of Erkan, Fisun and Esin have received by interim distribution $125,000, leaving a further entitlement to approximately $282,500 each.

13.   Each of the nine remaining grandchildren (excluding Alina) receive one-ninth of ¼ the residue, being approximately $45,277.77 (noting that Jamie has received by interim distribution $13,888.88, leaving him an entitlement to approximately $31,388.89).

…”

  1. In summary, the residue of the Estate that was available for distribution was $1,630,000 to be divided in quarters between Esin, Fisun, Erkan and the grandchildren, being $407,500.

  2. There is an ongoing dispute between Esin and her previous solicitors in relation to costs. Evidence from Birchgrove Legal provided a total estimate of approximately $120,000 in legal fees said to be owed to them by Esin.

The approach to the parties’ evidence

  1. Both Esin and Erkan were cross-examined during the hearing. Cross-examination on both sides was conducted economically and with a focus on the matters genuinely in dispute. Counsel agreed that where any matter had not been the subject of cross-examination, the Court could accept it.

  2. Esin underwent cross-examination in two parts. Having commenced giving her evidence in February, she remained under oath until the hearing recommenced in June, when she completed her cross-examination. Despite the considerable delay, there was no attack on Esin’s credibility as a witness. She was a direct and sometimes strident witness. Perhaps as a result of her background in accountancy, Esin paid close attention to the numerical figures in these proceedings.

  3. Erkan gave his evidence at the recommenced hearing in June. Unlike Esin, Erkan’s credibility as a witness was called into question. This will be dealt with further below when considering his assets and liabilities.

Esin’s circumstances

  1. Esin is the eldest of Yilmaz’s three children. She is fifty-three years of age and currently unemployed. She holds a TAFE qualification in accounting and was employed for many years as a financial controller and general manager but she has not worked in that area for more than a decade.

  2. At the time of the recommenced hearing, Esin was studying for a Certificate IV in Interior Design after which she intended to enrol in a Certificate IV in Training and Assessment at TAFE. These qualifications supplemented a Certificate III in Jewellery Manufacture that she had completed in December 2021. She estimated she would complete her studies by the end of 2024.

  3. Esin is a single parent to four children: Alina, who was 23 years old when the proceedings commenced in December 2020; Justin, who was 17 when the proceedings commenced but who has since turned 18; Josh, who is 16 years old; and Tejahn, who is 13 years old. With the exception of Alina, Esin’s children reside with and are financially dependent upon her. Justin is enrolled fulltime at university where he is studying a Bachelor of Medical Science. Josh and Tejahn are in high school.

  4. Esin and the children (excepting Alina) live in a rental property in Hurstville. Rent is charged at $806 per week, approximately two-thirds of which is covered by rental subsidy from Centrelink. For many years, Esin had only lived in rental accommodation and did not own any real property. She had briefly owned a townhouse at Roselands (the Roselands Townhouse) which she purchased from Erkan. Her parents assisted her with the mortgage, but the repayments could not be maintained and Esin sold the Roselands Townhouse. The family had been evicted from a previous rental property in Blakehurst in 2021 and had also experienced a brief period of homelessness after the sale of the Roselands Townhouse.

  5. Esin’s evidence was that the family get by with old, second-hand furniture. She does not currently own a vehicle after the previous family car was damaged in an accident in early 2022.

  6. It was unchallenged that Esin had a close relationship with her father which grew stronger after her divorce and the death of Yilmaz’s wife. She provided Yilmaz with domestic assistance and care from 2010 onwards, to the extent that she received a carer’s pension from 2014 to 2020. At the time of his death, she would visit him almost every day.

  7. A medical assessment prepared on Esin’s behalf noted that she suffers from a variety of conditions, including anxiety, depression and chronic pain in her hips, neck and back. She receives regular chiropractic care in relation to her chronic pain in addition to a number of medications. Her chronic pain has negatively impacted her ability to obtain and maintain employment due to the effect on her physical mobility. Her children also have medical needs. The three youngest children suffer from asthma, allergies and require contact lenses to manage short-sightedness. Her sons undergo chiropractic treatment for various ailments.

  8. There was a history of conflict between Esin and Erkan. Esin accused Erkan of being “aggressive, intimidating and confrontational”. Erkan accused Esin of being “the aggressive one in the family” who “instigates arguments in the family and on many occasions goes too far”. During an altercation between the siblings in 2013, Erkan hit Esin which resulted in an apprehended domestic violence order being taken out against him by police.

  9. Esin’s estimated annual income is approximately $65,000 per annum. Her monthly income includes:

  1. Jobseeker payments of $1,337.63;

  2. Family Tax Benefit payments of $1,693.20 (scheduled to reduce to $1,000);

  3. Pensioner education supplement of $135.20; and

  4. Child support payments from her former spouse of $2,047.05.

  1. Esin also receives subsidies for her electricity account, children’s school fees and her TAFE fees.

  2. Esin’s average monthly expenses are approximately $6,000, including:

  1. Utilities of approximately $400;

  2. Groceries of approximately $2,200;

  3. Repayments of a loan from the Department of Family and Community Services of $113.67;

  4. Motor vehicle expenses of approximately $500;

  5. Rent of $1,085.29 (not including the rental subsidy received).

  1. Additionally, Esin has liabilities totalling $57,646.44 arising from various loans, outstanding electricity payments and legal fees.

  2. There was no dispute that, upon receiving her quarter share of the Estate, Esin would no longer be entitled to her Jobseeker payments or subsidised rent.

Fisun’s circumstances

  1. Fisun initially commenced family provision proceedings which were to be heard at the same time as Esin’s matter. However, on the first day of hearing, Fisun’s matter settled. She was not cross-examined. Based on the material Fisun provided, and which was tendered in these proceedings, the following facts regarding her circumstances were established.

  2. Fisun is Esin’s younger sister. She is fifty-two years of age and has been a full-time homemaker for the past twenty years. Her income comprises Jobseeker payments and a Family Tax Benefit. The primary breadwinner is her husband, Frank, who is a sole trader. In June 2020, the net profit of Frank’s business was $16,445. The couple are the registered proprietors of the family home which has an estimated value of $1,400,000.

  3. Fisun has four children: Jamie, Jessica, Jayke and Tyler. Jamie lives out of home and is no longer financially dependent upon his parents. Jessica and Jayke have left school but continue to reside with their parents and remain partially financially dependent on them. Tyler is still at school and is totally financially dependent on Fisun and Frank.

  4. In 2010, Fisun and Frank accrued a debt of approximately $200,000. There was no evidence before the Court regarding how much of the debt (if any) remained. Otherwise, they had a home loan of $424,000.

Erkan’s circumstances

  1. Erkan is Yilmaz’s youngest child. He is fifty years old and a qualified builder. He resides with his wife, Anastacia (known as Stacey) and their two sons, Aleksander (aged nineteen when the proceedings commenced) and Phillip (aged seventeen when the proceedings commenced). They live at the family home located in Sylvania (the Sylvania Property). That property was purchased in Stacey’s name alone in 2014. The family moved there after Yilmaz’s death, prior to which they had lived at the Connells Point Property with him.

  2. It was not challenged during cross-examination that Erkan had been a dutiful son who organised medical appointments, took his father wherever he requested, and paid many of his father’s bills over the years (although it was unclear whether the bills were paid with Erkan’s money or if he simply paid Yilmaz’s bills for him using Yilmaz’s own money). He had assisted his parents to purchase the Connells Point Property by paying for expenses and stamp duty and had maintained his parent’s home and garden for them.

  3. It was also uncontested that Erkan had made significant improvements to the Connells Point Property at a total cost to him personally of $545,500. The money outlaid by Erkan was, according to his evidence, a loan that his father intended to repay him but was unable to fulfill prior to his death. The $300,000 bestowed to him under the Codicil was in recognition of this. While Esin had not challenged the Codicil, she said more than once in her evidence that she disputed that there was ever a loan of the kind alleged by Erkan. This is not an issue the Court had to resolve.

  4. Together, Erkan and Stacey operate a construction company named Solid Homes and Pools Pty Ltd (Solid Homes). Stacey is the sole director, secretary and shareholder of the company. Erkan is engaged as a manager. Stacey has also been working part-time at another company since about February 2022.

  5. Erkan’s evidence was that he had no income. He had spent much of the previous five years engaged in construction work on the Sylvania Property. The Saticis were constructing a second dwelling on the Sylvania Property with a view to selling at least one of the dwellings at some future time. Aside from this, he had also undertaken occasional work for Solid Homes.

  6. In early 2022, Solid Homes acquired a $1.8 million construction contract for a site at Ellis Street, Sylvania where Erkan had completed some earlier excavation work. Erkan was to be the site manager for the project. Aside from the fact of the contract, there was no evidence as to what Solid Homes’ profit would be. Nor was there any evidence as to what, if anything, Erkan would be paid as site manager.

  7. Because of the way Erkan and Stacey had organised their affairs, it was common ground that for the purposes of these proceedings they and Solid Homes should be considered as a single economic unit (the Satici Group).

  8. The exact assets and liabilities of Solid Homes was unclear. Erkan gave evidence in cross-examination that he did not use a computer and left all of the family finances, including the management of Solid Homes, to Stacey. Stacey has worked as an office manager and bookkeeper, and liaises with an accountant, but does not have formal qualifications of that nature.

  9. Solid Homes’ financial statements for the period ending 30 June 2021 were in evidence. These showed a significant excess of liabilities over assets. The largest liability was a director’s loan, although Mr Trebeck was able to demonstrate in his cross-examination that Erkan and Stacy used Solid Homes to pay many of their private accounts. So while it may be the case that Stacey had loaned money to Solid Homes (there being no dispute that the source of the loan was drawdowns from their offset loan over the Sylvania Property), there was no corresponding asset recorded in Solid Homes’ books for Stacey and Erkan’s obligation to reimburse the company for what it had paid on their behalf in personal expenses. However, it is not necessary for the Court to determine finally the financial position of Solid Homes. Mr Salama did not contend that Solid Homes made a positive contribution to the net position of the Satici Group.

  10. The couple are also trustees of the Satici Family Trust for which their sons are the specified beneficiaries. Erkan and Stacey are general beneficiaries, a fact about which Erkan said he was unaware of until it was pointed out to him by Mr Trebeck during cross-examination.

  11. The evidence of Stacey’s and Erkan’s assets and liabilities was:

ASSETS AND LIABILITIES OF ERKAN SATICI

Asset

Estimated Value

Superannuation

$1,200

Isuzu Dmax Truck

$25,000

Hino Truck

$25,000

Approximate Total

$51,200

Liability

Estimated Value

NIL

NIL

Total

NIL

ASSETS AND LIABILITIES OF STACEY SATICI

Asset

Estimated Value

Real property [The Esplanade, Sylvania]

$3,600,000

Boat

$50,000

Holden Astra

$12,000

Superannuation

$35,000

Shares in Solid Homes and Pools

$0

ANZ Bank Account

$2,300

Approximate total

$3,699,300

Liability

Estimated Value

NIL

NIL

Total

NIL

ASSETS AND LIABILITIES OF ERKAN AND STACEY SATICI

Asset

Estimated Value

House contents

$20,000

Offset account

$133,500

Approximate Total

$153,500

Liability

Estimated value

[ANZ Bank Loan over Sylvania Property]

$870,000

Loan from Peter and Nitsa Arvantis

$320,000

Loan from Aleksander Satici

$72,500

Loan Philip Satici

$7,000

Loan from Satici Famil Trust

$418,000

Loan from Maz Pagnin

$50,000

Total

$1.737,500

  1. The ANZ loan over the Sylvania Property was attributable to both Erkan and Stacey, despite Stacey being the sole registered proprietor. Under cross-examination, Erkan gave evidence that he had prepared the information in relation to the couple’s assets and liabilities from memory alone and without reference to any documents.

  2. There were two substantial areas of dispute between the parties. The first related to the alleged loans to Stacey in respect of the Sylvania Property. The second related to the value of the Sylvania Property itself.

  3. As to the first, Mr Trebeck was able to demonstrate in his cross-examination of Erkan that the alleged $50,000 loan to Max Pagnin had been repaid. Erkan’s evidence was that he did not know that had occurred. Furthermore, Erkan was criticised because in an earlier affidavit he had suggested that the loan from Stacey’s parents (Peter and Nitsa Arvantis) was only $100,000 whereas in his latest affidavit he said it was $320,000. The explanation for this was that in a conversation with his wife she had corrected him and he had moved to immediately correct his evidence. Mr Trebeck submitted that it was incredible that he should not know the amount of the loan. The other loans (other than the loan to the bank) were all undocumented loans from family members:

  1. $72,500 loaned to Erkan and Stacey by their oldest child, Aleksander, who was 21 years old at the time of the hearing.

  2. $7,000 loaned to Erkan and Stacey by their youngest child, Philip, who was 19 years old at the time of the hearing.

  3. $418,000 loaned by Erkan and Stacey to themselves from the Satici Family Trust for which they were trustees and general beneficiaries.

  1. Mr Trebeck submitted that given the discrepancies in Erkan’s evidence in relation to the loans, the Court could not accept his evidence generally as to his and Stacey’s financial position. He also submitted that a Jones v Dunkel inference should be drawn because Stacey, who by Erkan’s own evidence was the person primarily responsible for controlling the family finances, had not been called to give evidence. Erkan explained that she had not been called because she had suffered from anxiety and stress as a result of the proceedings, although there was no medical evidence to this effect.

  2. The Court accepts Mr Trebeck’s submission that a Jones v Dunkel inference should be drawn to the effect that Stacey’s evidence would not have assisted Erkan’s case. Furthermore, the Court accepts his submission that given the unsatisfactory nature of Erkan’s evidence on this point, the Court could not regard his evidence as reliable or accurate. I find that, with the exception of the ANZ bank loan, Erkan’s evidence about these loans, unsupported by any documentary or other evidence, is insufficient to satisfy the Court that those loans exist or that, even if those funds have been advanced as alleged that they are in fact loans that would ever be called on to be repaid.

  3. In drawing this conclusion I wish to make clear that I do not find that Erkan was seeking to mislead the Court deliberately. My impression was that the matters which he was criticised for by Mr Trebeck were a combination of error and complete inattention to financial detail. He appears to have taken literally the advice he said he was given by his solicitor that he should give his evidence to the best of his recollection. On matters of finance, he seems to have relied only on what he said was his memory and had made no effort to verify the evidence he was giving. His evidence on these matters struck me as inept but not deceitful. However, these conclusions mean that for present purposes the liability which the Court will accept (for which both Stacey and Erkan are liable) is for the secured loan to ANZ over the Sylvania Property, which liability currently stands at $870,000.

  4. The second area of dispute was the value of the Sylvania Property itself. This constitutes two houses, one built on the road (Number 1), and the other behind it (Number 2). Erkan and Stacey are currently occupying Number 2 and Number 1 has further work to be done on it before it can be occupied. I accept Erkan’s unchallenged evidence that he and Stacey are undecided as to what will happen to Number 1. He had been informed by the local Council that a subdivision would not be possible, but that the two properties would be able to be converted to two strata titles. Erkan did not know whether he would sell Number 1, or whether Number 1 would be rented out to provide an income source for the family.

  5. Esin provided three valuation reports for the Sylvania Property:

  1. Genuine Property Services dated 3 February 2022 (this was the only formal valuation in evidence; all the others from both parties were kerbside valuations):

  1. $2,200,000 for Number 1; and

  2. $1,950,000 for Number 2.

  1. Elders Realty dated 6 May 2022:

  1. $3,300,000 for Number 1; and

  2. $3,100,000 for Number 2.

  1. DJW Property dated 13 May 2022:

  1. $2,800,000 to $3,080,000 each.

  1. Erkan also provided two valuations for the Sylvania Property:

  1. Luxe Agency dated 30 May 2022:

  1. $1,700,000 – $1,800,000 for Number 1; and

  2. $1,600,000 – $1,700,000 for Number 2.

  1. The Property Co Group dated 3 June 2022:

  1. $1,950,000 for Number 1; and

  2. $1,800,000 for Number 2.

  1. I took the view that given the way in which the case was presented by each party, it was unlikely that the Court would have to make a final determination of the actual value of the Sylvania Property. In those circumstances, the just, quick and cheap course was to admit all of the evidence and invite the parties to make submissions about to it to the extent they thought it relevant. One particular deficiency with all of the evidence was that none of it took into account the uncontested fact that the two houses may not be able to be subdivided into two Torrens Title properties. There was no dispute that the value of the two properties as strata lots would be less than their value as two discrete Torrens Title properties. However, the Court had no evidence before it as to what the discounted value should be.

  2. The reason why it is ultimately unnecessary for the Court to come to a final determination of the value of the Sylvania Property is because it was obvious from the facts overall, and Mr Salama properly conceded, that on any view the Saticis were better off than Fisun and considerably better off than Esin (who unlike her siblings, had no real estate of her own at all). However, to the extent it is necessary for the Court to express a view about the value of the Sylvania Property, I will adopt the mid-point of the valuations. For Number 1 that figure ranged from $1,750,000 to $3,300,000. The mid-point is $2,525,000. For Number 2 that figure ranged from $1,650,000 to $3,100,000. The mid-point is $2,375,000.

  3. It follows that for the purposes of considering competing claims, the combined value of the two houses on the Sylvania Property is $4,900,000 subject to a mortgage of $870,000. The Court has no evidentiary basis on which to determine any discount to reflect the likelihood that the value of the two houses will be as strata lots.

Three preliminary matters

  1. There are three preliminary matters to note:

  1. It was common ground that to the extent any additional provision was to be ordered in favour of Esin, it should not be borne by that quarter of residue left to Yilmaz’s grandchildren.

  2. Mr Salama’s position in relation to the question of whether adequate provision for the proper maintenance, education or advancement in life had not been made for Esin under the Will was nuanced and, correctly in my respectful opinion, faintly put. In answer to my inquiry whether the estate conceded that adequate provision had not been made, Mr Salama responded that while he could not make that concession, he accepted that there was evidence before the Court upon which it could conclude that adequate provision had not been made for Esin. He indicated he did not wish to be heard further on the question beyond making that submission. In recording his submissions in this way, I am not to be taken as making any criticism of Mr Salama. This was a submission he was entitled to make in accordance with his instructions. However, given that submission and the conclusion which I have independently reached, the Court has no hesitation in finding that, given her circumstances as set out in [24] to [36] above, the quarter share of residue in the sum of $407,500 is not adequate provision for Esin.

  3. Mr Salama submitted that, by reference to various open offers that had been made during the course of the proceedings, if the Court was of the view that additional provision should be made for Esin, he would not be heard against a total provision in lieu of her quarter share of residue in the sum of $607,000.

Esin’s submissions

  1. Esin’s evidence of her needs was:

  1. One-off expenses totalling between $222,500 to $248,500 including:

  1. Setting up a jewellery manufacture studio and equipment to create a portfolio of work;

  2. Purchase of a new family car for $30,000;

  3. Dental work for Esin and the children;

  4. Purchase of new bedroom suites for Esin and the children;

  5. Purchase of desks and chairs for Esin and the children;

  6. Purchase of a small storage unit;

  7. Purchase of a new fridge;

  8. Purchase of laptops for her sons to use at university and TAFE; and

  9. A family holiday to Turkey for one month at an estimated cost of $40,000.

  1. Income sufficient to cover all expenses until Esin could obtain employment totalling between $147,969.20 to $219,839.60 depending on whether she maintained her rental subsidy.

  2. Income sufficient to cover all expenses for her youngest child, Tejahn, until she attained the age of eighteen (which would occur in November 2026) totalling an estimated $110,448.38. This figure was contingent upon Esin obtaining employment as a jeweller sometime in January 2025.

  3. Further income in the event that her son, Justin, also continued to live at home while completing his university studies (with an expected completion date in November 2028). That would increase the estimated shortfall by an additional $145,250.48.

  4. Contingent legal costs liability to her former legal representatives totalling $122,281.95. There had been no final determination as to Esin’s liability at the time of the resumed hearing and she stated her intention to challenge that liability.

  1. In addition to those financial needs set out directly above, Esin sought to obtain suitable and secure accommodation for herself and her three youngest children. This would require a four bedroom house. She provided extracts from the Domain website to show median house prices at auction in March 2022 and requested $990,000 for the purchase price plus approximately $40,000 for stamp duty.

  2. Mr Trebeck submitted that total provision in lieu of her quarter share of residue of $850,000 should be given to Esin, with the additional provision over her quarter share of revenue to be borne solely by Erkan. The difficulty with this submission, as Mr Trebeck properly acknowledged, was that the figure of $850,000 would on no view be sufficient to meet her all her particular needs for which she contended as well as put her in a position to purchase a house of the kind she said she needed.

  3. He went on to submit:

  1. Proper provision depended on all of the circumstances, including the circumstances of both Erkan and Fisun. In contrast to Esin, both of her siblings owned (or co-owned) real property.

  2. There was no rule that proper provision for an adult child excluded money to purchase a house. A wise and just testator would have appreciated the needs of a single mother with three young children to provide stable and secure accommodation. Mr Trebeck directed the Court’s attention to these authorities:

  1. Mayfield v Lloyd-Williams [2004] NSWSC 419 (Mayfield v Lloyd-Williams) upheld on appeal at [2005] NSWCA 189 where White J (as his Honour then was) stated:

“109 In Shearer v The Public Trustee; Hawke v The Public Trustee (Young J, (as his Honour then was) 23 March 1998 unreported, BC9801169) said:

“Where the applicant is a spouse it is nowadays usually thought that to leave a spouse with a mere right of residence is insufficient provision. However, that is not the case with children, and as far as I am aware it has never been said by any Court that it is an obligation that the community expects that a mother will leave her child in a position where the child has a house of his or her own.”

110 However there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That may be true as a very general statement. However cases are infinitely variable and what is proper maintenance and advancement in life depends on all the relevant circumstances. Examples of such provision are not hard to find, most notably in Re Buckland, deceased itself. There, where the estate was vast, the deceased’s adult daughter was left by will, inter alia, a house and contents valued in November, 1964 at about £9,500.00 and an annuity of £3,500.00. At the testator’s death, she was in receipt of an independent income and owned her own house worth about £8,000.00. As well as more than doubling the annuity, Adam J ordered the provision of a further £25,000.00 for the acquisition of a more substantial home should she desire it, or a seaside or country cottage or a prolonged overseas holiday (at 416-417). See also Ogden v Green [2003] NSWCA at [12].”

  1. McGrath v Eves [2005] NSWSC 1006 (McGrath v Eves) per Gzell J where his Honour, discussing the applicability of Mayfield v Lloyd-Williams, stated:

“71 There are differences of fact between Mayfield and the present case. But they do not affect the central proposition that there is no rule to the effect that proper provision for an adult and presently able-bodied child does not extend to providing him or her with a house or money to buy one. That proposition was not criticised by the Court of Appeal. Indeed, at [32], Bryson JA observed that it was open to White J and altogether appropriate to look well beyond needs when interpreting and applying community standards to decide what provision the court ought to order.”

  1. The one-off expenses listed at [65(1)] could be ranked by priority. For example, a holiday in Turkey would probably be the lowest ranked expense and the Court, in its discretion, could still grant provision in respect of the other one-off expenses.

  2. As to the issue of costs, Mr Trebeck submitted that the interlocutory order at [11] above should be set aside for these reasons:

  1. Esin was unrepresented at the time the order was made, Mr Anderson having expressly (and properly) declined to make any submission on the point;

  2. Her legal representatives had only just ceased to act for her and she was not afforded much opportunity to make submissions except to state that she felt a costs order would be unfair.

  3. The fact that Esin stated at the original hearing that she understood the orders as to costs did not justify the making of those orders.

  4. At the time the orders were made, it was approximately 5pm at the conclusion of two days of proceedings.

  1. On the topic of Esin’s legal fees, during the course of argument Mr Trebeck also submitted for Esin that capping those fees at a figure of up to $120,000 would make commercial sense between Esin and her former solicitors.

  2. It was Erkan who should bear the burden of Esin’s additional provision given the relative size of his assets and the amount he was to inherit out of the Estate. Otherwise, the share of the Estate bestowed upon Yilmaz’s grandchildren should not be quarantined from any costs since those costs belong to the Estate which acted on behalf of all of the other beneficiaries (including the grandchildren).

  1. It was put to Mr Trebeck that, taking into account the figures provided by Esin at their highest (excluding the purchase of a house and the cost of a holiday in Turkey), an approximate amount of $675,000 would be adequate provision. Why should the Court provide the $850,000 amount that Esin sought? Mr Trebeck submitted that the higher figure was justified because the proposed figure of $675,000 would be depleted in about five years.

Erkan’s submissions

  1. Mr Salama submitted for Erkan:

  1. Erkan had made contributions that increased the value of the Estate, in particular the contributions he had made by assisting in the purchase, maintenance and improvement of the Connells Point Property, which justified him retaining his share of the residue.

  2. While each case is to be decided on its own circumstances, the Estate was not in a position to purchase an unencumbered home for Esin, especially given the relative size of the Estate and the number of beneficiaries.

  3. Irrespective of any findings as to credit, the real issue in the proceedings was whether the financial needs established by Esin were sufficient to warrant further provision. As to the question of the quantum to which Esin might be entitled, the Estate had already offered her an additional $140,000 at the time the hearing was adjourned in February on the basis of her needs at that time. Her needs since then had not substantively altered. That offer still represented adequate provision. On that basis, the Estate would not contest any award of total provision up to $607,000.

  4. Any additional provision to Esin should be borne in one of two ways. Either it could be borne equally by Erkan and Fisun or rateably between them, with Erkan bearing slightly more of the burden than Fisun.

  5. On the issue of costs, the Estate would accept an order that Esin’s costs to be paid out of the Estate should be capped at $100,000. This was the adoption of a position which I had tentatively raised during the course of argument.

The legal principles

  1. There was no dispute as to the legal principles applicable to adult children. Those principles were summarised by Ward CJ in Eq (as her Honour then was) in Grant v Roberts; Smith v Smith; Roberts v Same; Curtis v Same [2019] NSWSC 843. Her Honour said (and I gratefully adopt):

“166.   Second, as to the position of claims by adult children of the deceased, each application for provision must be dealt with by the Court on its merits on the evidence before the Court.

167. It has been asserted, in a number of cases in the past (both in applications for provision under the previous legislation and under the currently applicable provisions of the Succession Act), that it cannot generally be said that a parent has an obligation to provide an adult child with a home (see Fiorentini v O’Neill [1998] NSWCA 79 (at 7); see also Delaney v Jones [2008] NSWSC 229). It has, however, also been recognised that there are circumstances in which there may be a moral obligation on the part of a parent, in particular circumstances, to make provision for an adult child (see Taylor v Farrugia [2009] NSWSC 801 at [57]).

168.   As the Court of Appeal in Steinmetz v Shannon [2019] NSWCA 114 (Steinmetz v Shannon) has recently made clear, guidelines (of the kind that have been expressed in various cases relating to claims by widows, or adult children, or grandchildren) cannot be elevated to inflexible rules and are always subject to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant’s conduct and the applicant’s relationship with the deceased (see White JA at [37]; Brereton JA at [106]).

169.   There is, and should be, no predisposition for or against the making of orders for provision for adult children (just as there is, and should be, no predisposition for or against the making of orders for the deceased’s spouse). To approach the matter with such a predisposition would, if nothing else, be inconsistent with the observations of the Court of Appeal (in Steinmetz v Shannon and elsewhere) and inconsistent with the recognition in numerous cases that, in the circumstances of the particular case there at hand, there had been inadequate provision for an adult child (and the making of orders for provision out of the estate for an adult child in the particular circumstances of that case) (see, for example, Stern v Sekers; Sekers v Sekers [2010] NSWSC 59).

170.   Each case must be determined on its merits, whether the applicant for provision be an adult child, surviving spouse, or other dependant; I do not read the observations of the Court of Appeal in Sgro v Thompson as suggesting otherwise (and, as I say, the Court of Appeal in Steinmetz v Shannon makes this clear). As Lindsay J said in Verzar v Verzar [2012] NSWSC 1380 (at [131]), in a passage that has been endorsed by Hallen J in Sreckovic v Sreckovic [2018] NSWSC 1597 (Sreckovic) (at [154]):

Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19].”

  1. Added to this are these observations of Hallen J (referred to by Mr Salama in his written submissions) in Camernik v Reholc [2012] NSWSC 1537 at [159]:

“In relation to a claim by an adult child, the following principles are useful to remember:

(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.”

  1. Hallen J reiterated these principles in subsequent cases, including Anderson v Hill [2017] NSWSC 1149 at [135] which was referred to by Mr Trebeck in his written submissions.

  2. These principles represent helpful guides when the Court must consider the case of an applicant who is an adult child. However, they cannot be taken as confining the proper operation of the statute in accordance with its terms.

  3. The Succession Act 2006 (NSW) (the Succession Act) includes:

“59   When family provision order may be made

(1)  The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that—

(a)  the person in whose favour the order is to be made is an eligible person, and

(b)  in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57—having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)  at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)  The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made. … ”

  1. It was uncontroversial that Esin was an eligible person for the purpose of the statute. I have already concluded that the Will did not make adequate provision for Esin (see [64(2)] above). The real issue was what order (if any) for additional provision the Court should make.

  2. The Court may have regard to certain matters for the purpose of determining whether to make a family provision order which are enumerated under the Succession Act:

“60   Matters to be considered by Court

…

(2)  The following matters may be considered by the Court—

(a)  any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship,

(b)  the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate,

(c)  the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered,

(d)  the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate,

(e)  if the applicant is cohabiting with another person—the financial circumstances of the other person,

(f)  any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated,

(g)  the age of the applicant when the application is being considered,

(h)  any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant,

(i)  any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate,

(j)  any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person,

(k)  whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so,

(l)  whether any other person is liable to support the applicant,

(m)  the character and conduct of the applicant before and after the date of the death of the deceased person,

(n)  the conduct of any other person before and after the date of the death of the deceased person,

…

(p)  any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.”

Consideration

  1. It is convenient to summarise the evidence by reference to the various factors in s 60(2) of the Succession Act without overlooking the fact that this is a non-exhaustive list.

  2. Esin’s relationship to Yilmaz (s 60(2)(a)): Esin was Yilmaz’s eldest daughter and they had enjoyed a close and enduring relationship at the time of his death. She provided him with care and assistance during the last decade of his life (see [29]).

  3. Yimaz’s obligations or responsibilities to Esin and the other beneficiaries (s 60(2)(b)): There are thirteen beneficiaries under the Will, being Esin, Fisun, Erkan and Yilmaz’s ten grandchildren. In Erkan’s case, there was some suggestion that the further sum he had been bequeathed under the Codicil was repayment of moneys loaned for improvements to the Connells Point Property (see [43]). Otherwise, Yilmaz’s obligations were those of a father of adult children and grandfather.

  4. The value of the Estate, including any liabilities or notional estate value (s 60(2)(c)): There was no notional estate. The Estate was largely derived from the proceeds of the sale of the Connells Point Property with minimal liabilities other than the payment of legal fees. The distributable residue is approximately $1,630,000 (see [19]).

  5. The financial resources, needs and earning capacity of Esin (s 60(2)(d)): Esin’s financial needs and circumstances are detailed at [24] to [36]. She is a single mother who receives government benefits and child support. Her earning capacity is impacted by her medical situation, age, formal qualifications and the amount of time she has spent outside of the workforce. She owns no real property.

  6. The financial circumstances of anyone Esin cohabitates with (s 60(2)(e)): Esin cohabitates with her three youngest children, all of whom are studying and are financially dependent upon her (see [26]). Esin will not finish her own studies until approximately 2024 when she hopes to obtain employment in her chosen field (see [25]).

  7. Any physical, intellectual or mental disabilities of Esin, or any other person/beneficiary of the Estate (s 60(2)(f)): Esin has some medical issues that impact her ability to work in certain occupations (see [30]) although she has made clear that she intends to return to the workforce as a jeweller.

  8. Esin’s age (s 60(2)(g)): Esin is currently 53 years of age.

  9. Any contributions by Esin to either the Estate or the welfare of Yilmaz for which adequate consideration was not received (s 60(2)(h)): Esin provided care and assistance to Yilmaz over the final decade of his life. For some of those years (2014-2020) she received a carer’s pension (see [29]).

  10. Provision already made for Esin by Yilmaz (s 60(2)(i)): Under the Will, Esin was to receive a quarter share of the Estate, being $407,500 (see [19]) and Esin’s parents had assisted her with the mortgage at the Roselands Townhouse (see [27]). Aside from this there was no evidence of other provision given to Esin during Yilmaz’s lifetime.

  11. Evidence of Yilmaz’s testamentary intentions (s 60(2)(j)): The Will provided sufficient evidence of his intention, including the Codicil. There is no evidence to suggest he did not wish to see Esin cared for. The Will also evidenced Yilmaz’s intention to see his grandchildren properly cared for, three of whom reside with Esin.

  12. Whether any person is liable to support Esin (s 60(2)(l)): Esin receives child support payments from her former husband in relation to her youngest children, Josh and Tejahn while they are in their minority (see [32]).

  13. Bearing in mind the authorities referred to in [68(2)] and [71] to [73] above, I readily accept there may be cases where (the size of the estate and other claims upon it permitting) provision sufficient to enable a healthy and employable adult child to purchase a home should be ordered. This is not such a case. The Estate is not large and the Court gives weight (but not conclusive or decisive weight) to Yilmaz’s intentions as demonstrated by the scheme of the Will. Apart from the additional gift to Erkan (said to be discharging a loan, the merits of which the Court is not required to resolve), Yilmaz wished to treat each of his children equally and, to a lesser extent, made provision for his grandchildren (it not being necessary to consider the law relating to gifts to grandchildren).

  14. The cases relied on by Mr Trebeck do not undermine that conclusion. In McGrath v Eves, the estate in question had a value of some $2.4 million and half beneficiaries of the present case. Gzell J held that the estate was not sufficiently large to provide the applicant with an unencumbered home, noting that she and her husband still had capacity to service a mortgage (at [80]). Esin’s ability to earn a living is impacted in the short-term while she undertakes further education and training, but she is still in a position to obtain gainful employment in the future and, to her credit, intends to do so.

  15. In Mayfield v Lloyd-Williams, proper provision did include an amount sufficient to purchase reasonable accommodation. There were unique circumstances in that case. The applicant lived on the family farm which, upon her husband’s retirement, the couple would most likely be required to vacate in favour of the younger generation for little or no consideration (at [95]-[100]). No special circumstances exist in the present case given the size of the Estate and the impact of provision of that size on the other beneficiaries.

  16. In my respectful view, the decisive matters are that Esin is of an age where she will still be able to work for a number of years. She is taking steps to retrain as a jewellery designer. Her own calculations in her evidence (displaying her background in bookkeeping that she has not pursued for many years) were premised on her returning to work in a few years’ time. Furthermore, her children (currently aged 24, 18, 16 and 13) will all have reached their majority within the next five years. There is no suggestion in the evidence to contradict the usual expectation that they will wish to make their independent way in the world.

  17. These matters persuade me that a wise and just testator would approach the question of Esin’s needs, taking into account the size of the Estate and the proper claims of the other family members, to ensure that Esin had funds to continue to rent her home (given that any inheritance much over that which she would otherwise receive would deprive her of her entitlement to a rental subsidy) while her children were in their minority and she retrained and re-established herself in her new career, together with a fund for general purposes, including to meet any immediate needs that she may have. Given the size of the Estate and the circumstances of other family members, her moral claim does not extend to being given a fund to buy her own property.

  18. On this basis the Court has concluded that Esin should receive $700,000 in lieu of the quarter share of the residue that she would otherwise receive, in effect an additional provision of just under $300,000. I have arrived at this figure by two separate routes, each leading to approximately the same conclusion.

  19. First, the uncontradicted evidence was that Esin’s unsubsidised rent is $806 per week. This translates to $41,912 per annum. A sufficient fund to cover the rent for the minority of her children would therefore be $185,380 (being four years plus an additional 22 weeks until Tejahn turns 18 in November 2026). When this is added to the $407,500 she would otherwise receive, this gives a total of $592,880. Recognising that applications for family provision do not call for a precise delineation of the components of the provision, but rather an evaluative assessment of what will meet the proven needs of the plaintiff in the light of all the facts before the Court, I have concluded that $700,000 is proper provision, allowing just over $100,000 as a fund for her general purposes in addition to the amount for rent.

  20. The alternative route to the same result depends upon Esin’s own calculations presented in her most recent evidence. Esin set out her financial needs in an annexure to her affidavit of 28 April 2022 and which are reproduced verbatim below:

“One-off expenses
[This includes cost of setting up studio, all dental work, car, bedroom suites & mattresses, desks/chairs/storage unit fridge, family holiday to Turkey and laptops] Including the costs for dental treatment plan.

Liabilities [I interpolate this figure included an estimated $40,000 for legal costs of the resumed hearing which will fall within any costs order.]

$222,500-$248,500

$57,646.44

Contingent liabilities
Birchgrove Legal invoice no. 3391 dated 14 October 2021
Birchgrove Legal invoice no. 4054 dated 24 March 2022 (received 30 March 2022)
Amount claimed by AE Anderson of Counsel

[Liability for the contingent liabilities has been denied as mentioned in my amending affidavit. The question of my liability, and if any, to what extent, will depend on the outcome of further proceedings.] …


$58,317.09

$30,552.36

$33,412.50

Provision for income until I am able to get a job (in the event I become ineligible for the rental subsidy)

Calculated as (my monthly expenses of $9,546.52 x 12 months) x 2.5 years (being July 2022 to December 2024)
LESS my estimated monthly income $2,635.20 x 20 months (being July 2022 to March 2024 when Josh turns 18) on the assumption that I lose the rental subsidy of $2,395.68 ($552.85 per week x 52/12)
LESS my estimated monthly income $1,385.20** x 10 months (being March 2024 to December 2024)
**taking into account that my monthly income will reduce by approximately $1,250.00 per month as I am no longer eligible for Child Support for FTB for Josh
If I am allowed provision for extracurricular activities for the children as referred to in paragraphs 58-62 I would estimate that my monthly expenses would rise by $1,746.66.

The difference in income and expenses for the period until my youngest child turns 18 Calculated as my monthly expenses of $9,546.52 x 23 months (being the period of January 2025 [when I estimate I can work as a jeweller] to November 2026 [when my youngest child turns 18])

LESS my estimated yearly income as a jeweller of net $41,933.00* + $15,000**/12 x 23 months

*calculated as $48,000.00 less $6.067.00 tax as calculated using the ATO Simple Tax Calculator   

**taking into account the monthly $500.00 FTB and $750 Child Support Payment I am eligible for in relation to Tejahn for this period
In the event that Justin continues to live in the family house until he finishes his university studies

Calculated as my monthly expenses of $9,546.52 x 24 months (being the period of December 2026 to November 2028 [when Justin expects to finish his studies, provided that he is accepted to study Post Graduate Medicine])

LESS my estimated yearly income as a jeweller of $41,933.00*/12 x 24months

*calculated as $48,000.00 less $6,067.00 tax as calculated using the ATO Simple Tax Calculator …”

$286,395.60

LESS

$52,704.00

LESS
$13,852.00
 

= $219,839.60

$219,569.96
LESS

$109,121.58

= $110,448.38

$229,116.48

LESS

$83,866.00

= 145,250.48

  1. Rounding the figures provided by Esin above and subtracting $40,000 from the one-off costs for a holiday to Turkey, the contingent liabilities which were still disputed and the estimated $40,000 in legal costs from her other liabilities, the Court was left with these approximate figures:

One-off expenses

$200,000

Liabilities

$17,000

Provision for income until I am able to get a job (in the event I become ineligible for the rental subsidy)

$220,000

The difference in income and expenses for the period until my youngest child turns 18

$110,000

In the event that Justin continues to live in the family home until he finishes his university studies

$145,000

  1. The Court also excluded the $990,000 plus $39,875 for stamp duty that Esin requested in relation to the purchase of a house.

  2. Totalling the approximate amounts at [98], Esin’s own calculations result in provision of $692,000.

  3. In relation to how the burden of the additional provision is to be borne, Mr Trebeck submitted that it should be fully borne by Erkan. Mr Salama submitted that it should either be borne equally between Erkan and Fisun or in a manner that was proportionate to their share of the Estate. The Court accepts the second of Mr Salama’s submissions. Given their respective financial positions, the Court has determined that the burden should fall primarily on Erkan and to a lesser extent on Fisun. This would reflect the proportions as to how the testator treated them by taking into account both Erkan’s share of residue plus the $300,000 for the purposes of determining the portion in which he should bear the additional provision for Esin (insofar as it is beyond what would otherwise have been her quarter share of residue).

  4. The question of costs is complicated by the dispute that Esin has with her former solicitors. She has a contingent liability to them of $122,281.95. Her new solicitors estimated her legal costs on the ordinary basis of the resumed hearing to be $73,113,30. As I indicated to the parties during the course of argument, in my view this should have been a two day case. That is how it was, in effect, conducted before me in the resumed hearing and the costs incurred by her solicitors and counsel in relation to the resumed hearing were within a range which the Court would accept as appropriate for such a two day family provision hearing. On the other hand, I also note the Estate’s costs on the indemnity basis were $120,000 and that Alina had settled her case with a component for costs of $80,000.

  5. I am concerned to avoid the duplication which would arise in the costs order in Esin’s favour because plainly her current legal team would have had to do work that was also charged, and for which Esin may be liable, to her former legal team in relation to the adjourned hearing. The Estate should not have to bear any such duplication in her costs. In those circumstances I have concluded that Esin should have her costs of the proceedings out of the Estate as assessed on the ordinary basis up to $100,000. The orders will provide that the Estate can agree to a higher amount should she be able to persuade it that the ultimate outcome of any assessment of her costs of a resumed hearing together with the outcome of her dispute with her former solicitors warrants a higher figure.

  6. In that regard, Esin would do well to keep the Estate informed as to the progress, particularly any proposed settlement, of her dispute with her former solicitors. Furthermore, because of the inherent uncertainty created by Esin’s dispute with her former solicitors, the Court will give her liberty to apply in relation to a costs order. However, that should only be exercised after all reasonable efforts have been exhausted to come to some agreement with the Estate if Esin wishes to contend that a sum in excess of $100,000 should be allowed for her costs out of the Estate.

  7. Finally, it is necessary to deal with the costs application for costs thrown away by reason of the adjournment. Mr Trebeck made submissions that, given the circumstances at the time the order was made and especially the fact of Esin’s being unrepresented, the order should be vacated (see [68(4)] above).

  8. I indicated to the parties that I would vacate the costs order, but the real question was whether Mr Salama would renew the application for costs thrown away, but now to be determined on a contested basis.

  9. At the conclusion of oral argument, Mr Salama indicated to the Court that there was to be no renewed application for the costs thrown away due to ongoing discussions between each side’s solicitors. An order was made permitting the Estate to make a renewed application at any time prior to 29 June 2022. No renewed application was received. Therefore, the Court will not make any special order about the costs of the Estate thrown away by reason of the adjournment in February.

Conclusion

  1. Esin is entitled to provision of $700,000 out of the residue of the Estate in lieu of her quarter share. To the extent that amount exceeds her initial entitlement, the excess is to be borne rateably by Erkan (including taking into account what he receives under the Codicil) and Fisun.

  2. Esin may have her legal costs out of the Estate on the ordinary basis up to $100,000 unless otherwise agreed between the parties and with liberty to apply as to costs.

  3. The parties will be given an opportunity to bring in short minutes to give effect to these reasons.

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Decision last updated: 08 July 2022

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Cases Cited

21

Statutory Material Cited

1

Anderson v Hill [2017] NSWSC 1149
Camernik v Reholc [2012] NSWSC 1537
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843