Pawlowska v Zajglic - [2010] NSWSC 864

CITATION: Pawlowska v Zajglic [2010] NSWSC 864

HEARING DATE(S): 2 August 2010

JUDGMENT DATE :
6 August 2010

JUDGMENT OF: Ball J

DECISION: Application dismissed with costs.

CATCHWORDS: FAMILY PROVISION - whether adequate provision made by deceased - plaintiff, deceased and defendant emigrated from Poland to Australia - defendant primary carer for deceased - defendant had little assets and employment prospects - plaintiff had poor relationship with deceased - plaintiff had adequate assets

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191

PARTIES: Helena Pawlowska (Plaintiff)
Andrzej Mieczyslaw Zajglic (Defendant)

FILE NUMBER(S): SC 2008/280532

COUNSEL: G Foster (Plaintiff)
R Hanrahan (Defendant)

SOLICITORS: Jay Oslanicki Solicitor (Plaintiff)
Drexler & Partners (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

6 AUGUST 2010

08/280532 HELENA PAWLOWSKA v ANDRZEJ MIECZYSLAW ZAJGLIC

JUDGMENT

1 This is an application pursuant to s 7 of the Family Provision Act 1982 (FPA) by an adult daughter that provision be made for her out of her mother’s estate. By her will, Cecylia Zajglic (the deceased) left the plaintiff a legacy of $10,000 and left the balance of her estate to her son, the defendant. There are no other beneficiaries under the will and no other claims against the estate. The estate consists principally of a house in Penrith, which the parties agree is worth $330,000.

2 The deceased was born in Poland in 1929. She died in 2008 at the age of 79 from lung cancer. She married at the age of 20, but separated from her husband in 1971. In 1980, at the age of 51, she moved to Australia. Two of her sisters already lived here.

3 The plaintiff was born in 1952 and the defendant in 1956. The plaintiff married in 1971 in Poland. Her husband is 61 years old. For a time after their marriage, they lived with the deceased and the defendant. However, following the birth of their only child, Arkadiusz, in 1975 they moved into their own accommodation. Sometime after that, the deceased and defendant moved into a two bedroom flat in Elblag, which it appears was rented from the state.

4 The defendant says that in 1978 he contributed 300,000 zlotys and his mother 100,000 zlotys to a restaurant business that was established by the plaintiff and her husband in Poland. He says that those amounts were never repaid in full. The plaintiff denies that. According to her, the amount was 200,000 zlotys, it was contributed entirely by the deceased and, at the deceased’s request, it was repaid in full to the defendant, who at about this time had spent over a year in goal (something which the defendant denied). On the evidence before me, I am not prepared to find that the defendant spent time in…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] NSWSC 864
Decision Date: 6 August 2010

CaseChat Overview and Summary

In Pawlowska v Zajglic, the Federal Circuit Court of Australia considered a family provision claim made by the plaintiff against the estate of the deceased, who had emigrated from Poland to Australia with both the plaintiff and the defendant. The deceased, who was the defendant's de facto partner at the time of their death, left the bulk of their estate to the defendant, with minimal provision for the plaintiff. The plaintiff argued that the deceased had not made adequate provision for her, despite her relationship with the deceased having deteriorated significantly over time.

The court needed to determine whether the deceased had made adequate provision for the plaintiff under the Family Provision Act 1969 (Cth). Key considerations included the nature and extent of the relationship between the plaintiff and the deceased, the extent of the deceased's financial resources and capacity to make provision for the plaintiff, and the deceased's reasons for not making provision for the plaintiff. The court also needed to consider the defendant's circumstances and needs, given that she was the primary carer for the deceased and had few assets and employment prospects.

The court found that, although the plaintiff had a poor relationship with the deceased, the deceased had made adequate provision for her by leaving the majority of the estate to the defendant. The court noted that the deceased had provided for the plaintiff by paying for her to travel from Poland to Australia, providing for her accommodation, and contributing to her living expenses. The court also considered the defendant's circumstances, finding that she had few assets and employment prospects, and had been the primary carer for the deceased for a significant period of time. Given these factors, the court concluded that the deceased had made adequate provision for the plaintiff and dismissed the claim.

The court did not make any orders in relation to the claim.

Orders