Pizimolas v Pizimolas & Zannis - [2010] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PIZIMOLAS v PIZIMOLAS & ZANNIS
[2010] SASC 158
Judgment of The Honourable Justice Kourakis
28 May 2010
ESTOPPEL - ESTOPPEL IN PAIS - EQUITABLE ESTOPPEL - PROMISSORY ESTOPPEL
Deceased estate, consisting of a property, left to deceased’s three children in equal shares – plaintiff, the youngest son, brought proceedings against defendants, his two siblings, claiming entitlement to the whole of the property – whether executors of the estate bound in equity to make good promises made by deceased to leave plaintiff the property if he continued to reside with and care for her.
Held: deceased’s promises to the plaintiff never intended to be irrevocable – plaintiff never relied on promises – plaintiff’s continued residence at the property not a detriment – plaintiff’s claim in equity dismissed.

SUCCESSION - FAMILY PROVISION AND MAINTENANCE - FAILURE BY TESTATOR TO MAKE SUFFICIENT PROVISION FOR APPLICANT - WHETHER APPLICANT LEFT WITH INSUFFICIENT PROVISION - CLAIMS BY CHILDREN
Plaintiff alternatively seeks order pursuant to s 7 of the Inheritance (Family Provision) Act 1972 that greater provision for him be made out of the estate – whether deceased made inadequate provision for plaintiff.
Held: a third share of the estate is not inadequate provision for the plaintiff having regard to the size of the estate and the relative needs of the other beneficiaries – plaintiff’s family provision claim dismissed.

REAL PROPERTY - GENERAL PRINCIPLES - EJECTMENT - MESNE PROFITS
Defendants sent plaintiff letter giving one month’s notice to vacate property or to pay weekly rent – plaintiff continued to reside in property but made no rental payments – whether defendants entitled to mesne profits.
Held: Defendants’ counterclaim for mesne profits allowed in the sum of $12,000.
Giumelli v Giumelli (1999) 196 CLR 101; Walton Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; Singer v Berghouse (1994) 181 CLR 201; Vigolo v Boston (2005) 221 CLR 191, applied.
Palm Gardens Consolidated Pty Ltd v PG Properties Pty Ltd [2009] SASC 311; Schaefer v Schuhmann [1972] 1 AC 572; Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; Ansett v Moss [2007] VSC 92, discussed.
Bosch v Perpetual Trustee Co Ltd [1938] AC 463; Clifton Securities Ltd v Huntley [1948] 2 All ER 283, considered.

PIZIMOLAS v PIZIMOLAS & ZANNIS
[2010] SASC 158
Civil
KOURAKIS J
Introduction

Maria and Yannis Pizimolas were born and married in the village of Gennadi on the Aegean Island of Rhodes. They migrated from Greece to Australia in about 1950 together with their two eldest children, the defendants, Phillip and Irene. The plaintiff Stavros Pizimolas was born in Australia. In 1959 Maria and Yannis Pizimolas purchased, as joint tenants, a home in Norwood (the Norwood home).
Maria Pizimolas was born on 9 March 1922. She was, by all accounts, an energetic and resourceful woman who maintained her household and nurtured her children with great industry.
In 1982 Maria and Yannis returned to…

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] SASC 158
Decision Date: 28 May 2010

CaseChat Overview and Summary

The plaintiff, Pizimolas, brought proceedings against his two siblings, the defendants, seeking to enforce an alleged promise made by their deceased mother to leave him the property in question if he continued to reside with her and care for her. Alternatively, Pizimolas sought an order under the Inheritance (Family Provision) Act 1972 that greater provision be made for him out of the estate, arguing that his deceased mother made inadequate provision for him. The defendants counterclaimed for mesne profits from Pizimolas, who continued to reside in the property without making any rental payments after receiving notice to vacate or pay rent.

The court had to determine whether the executors of the estate were bound in equity to make good the promise made by the deceased to leave Pizimolas the property if he continued to reside with and care for her. It also had to decide whether the deceased made inadequate provision for Pizimolas under the Inheritance (Family Provision) Act 1972. Furthermore, the court needed to assess the defendants' counterclaim for mesne profits from Pizimolas, who continued to occupy the property without paying rent after receiving notice to vacate or pay rent.

The court held that it was not bound in equity to enforce the promise made by the deceased to leave Pizimolas the property if he continued to reside with and care for her. It found that the deceased did not make inadequate provision for Pizimolas under the Inheritance (Family Provision) Act 1972. The court assessed the defendants' counterclaim for mesne profits and allowed it in the sum of $12,000, considering the circumstances and the likely return in renting the property. The court found in favour of the defendants on all claims, including the counterclaim for mesne profits.

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

True it is that the costs of these proceedings have now depleted the estate. The plaintiff may not be able to afford a unit of the value that he might have been able to purchase. That, however, is the result of his decision to bring these proceedings.Conclusion It follows that, for the reasons I have given, I find in favour of the defendants on the plaintiff’s claims both in equity and for family provision.The counterclaim for mesne profit The defendants counterclaim against the plaintiff for mesne profit, calculated at between $410 and $450 per week for the period of his occupancy from 3 September 2008. On that date the defendants sent Stavros’ solicitor a letter giving him one month’s notice to leave the Norwood home or to pay weekly rent in the sum of $350. Stavros continued to reside in the premises and has made no such payments. The defendants have shown that the weekly rental value of the property was $410 in September 2008, $425 in September 2009 and $450 in January 2010. In my view, however, to simply multiply the current rental market value of the premises by the number of weeks of the plaintiff’s occupation would be to over-compensate the defendants. It is necessary to assess the likely return in the particular circumstances of the Norwood home.[26] It would have been necessary to spend money to bring the house into a condition to rent it at the appropriate market value. The defendants may not have immediately rented the Norwood home having regard to all of the circumstances and, in particular, the disputed claims made over it. Even if they had, there may have been some difficulty in renting it or at least obtaining the market rate given the dispute over the house. The defendants may not have been in a position to provide a long term rental to secure the market rate. I also regard the claim to a rent of $350 made in the letter giving Stavros notice to quit as some evidence of the weekly rental at which the defendants would have let the house if Stavros had vacated it.[26] Clifton Securities Ltd v Huntley [1948] 2 All ER 283 at 284. In all of the circumstances and doing the best that I can, I allow the counterclaim only in the sum of $12,000.

Ratio Decidendi

Legal Principle Established

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