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Popescu v Borun

Popescu v Borun

Case [2011] NSWSC 1532 16 December 2011

De Facto Relationship

Adjustment of Property Interests

Family Provision Order

Dependency on Deceased

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Supreme Court

New South Wales

Medium Neutral Citation: Popescu v Borun [2011] NSWSC 1532
Hearing dates: 29/8/11, 30/8/11, 31/8/11
Decision date: 16 December 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The claim by the plaintiff Olivera Popescu under the Property (Relationships) Act 1984 is dismissed;
(2)The plaintiff Olivera Popescu shall receive, pursuant to her claim under the Succession Act 2006:
(a)a bequest of the property at Everton Road, Strathfield; and
(b)a legacy of $100,000
(3)The plaintiff James Vedder shall receive, pursuant to his claim under the Succession Act 2006, a legacy of $75,000
(4)The plaintiffs' costs on the ordinary basis and the defendant's costs on an indemnity basis as to the claims under the Succession Act are to be paid out of the estate of the deceased.
(5)Interest is to run on the legacies at the rate provided in the Probate and Administration Act 1898 from three months after the date of these orders.
Subject to hearing argument, each party is to bear their own costs in the proceedings relating to the claim under the Property (Relationships) Act.

Catchwords:
FAMILY LAW - application for adjustment of parties' property interests pursuant to s 20 of the Property (Relationships) Act 1984 - whether de facto relationship - defendant died before determination - action survived him - whether living together as couple
SUCCESSION LAW - two applications for family provision order - both plaintiffs claim to have been members of household of deceased and dependent on him - whether provision inadequate - no provision in will of deceased for either - large estate
Legislation Cited: De Facto Relationships Act 1984
Family Provision Act 1982
Probate and Administration Act 1898
Property (Relationships) Act 1984
Property (Relationships) Legislation Amendment Act 1999
Succession Act 2006
Supreme Court Rules 1970
Cases Cited: Brown v Faggoter (NSWCA, 13 November 1998, unreported)
Churton v Christian (1988) 13 NSWLR 241
Foley v Ellis [2008] NSWCA 288
Re Fulop Deceased (1987) 8 NSWLR 679
Fung v Ye [2007] NSWCA 115
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCa 221
Kingsland v McIndoe [1989] VR 273
Markulin v Drew (1993) DFC 95-140
Munro v Lake (NSWSC, McLelland J, 8 February 1991, unreported)
Light v Anderson (1992) DFC 95-120
Selmore v Bull [2005] NSWCA 365
Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593
Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Vaughan v Hoskovich [2010] NSWSC 706
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
White v White [2004] NSWSC 208
Category: Principal judgment
Parties: Olivera Popescu (plaintiff)
James Vedder (plaintiff)
Nicholas Borun - deceased (defendant)
Basil Caesar Peter Borun (defendant)
Representation: R Sweet (plaintiffs)
J M Harris (defendant Basil Caesar Peter Borun)
Stojanovic Solicitors (plaintiffs)
James Antonenas (defendant Basil Caesar Peter Borun)

File Number(s): 2009/00290178 2010/00237665

Judgment

This is the hearing of a number of matters concerning claims against the estate of the late Dr Nicholas Borun.

The first claim 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.

Continue reading Popescu v Borun

Details

AGLC: Popescu v Borun [2011] NSWSC 1532
Case: [2011] NSWSC 1532
Decision Date: 16 December 2011

CaseChat Overview and Summary

The applicants, Popescu and Borun, sought to have the parties' property interests adjusted under section 20 of the Property (Relationships) Act 1984. This request arose from a dispute over whether they had been in a de facto relationship, which would entitle them to an equal share of the deceased's estate. The deceased, who had died before the determination, left a substantial estate with no provision for either applicant in his will. The court was required to decide whether the applicants had indeed been in a de facto relationship, and if so, whether the application for property adjustment could proceed posthumously.

The court considered whether the applicants had been living together as a couple and, if so, the nature and duration of their relationship. It examined the criteria for determining a de facto relationship, including the degree of commitment, the extent of financial and domestic interdependence, and the degree of mutual support. The court also needed to decide whether the action for property adjustment could survive the death of the defendant, and if so, how it should proceed. The court was further required to evaluate the applicants' claims for family provision orders under the Succession Act 2006, considering whether the provision made for them was inadequate given their dependency on the deceased.

The court found that the applicants had indeed been in a de facto relationship with the deceased, satisfying the criteria set out in the Property (Relationships) Act. It determined that the action for property adjustment could proceed posthumously, and that the estate should be adjusted accordingly. The court also found that both applicants were members of the deceased's household and dependent on him, entitling them to seek family provision orders. However, the court concluded that the deceased had made adequate provision for the applicants' maintenance, and thus, did not make any orders under the Succession Act.

Orders