Public Trustee v Kehagias - [2009] NSWSC 972

CITATION: Public Trustee v Kehagias [2009] NSWSC 972

HEARING DATE(S): 17 April 2009

JUDGMENT DATE :
17 September 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I find, upon inquiry, that Nikolaos Kehagias is entitled to succeed to the estate of the late Dimitrios Kehagias (“the Deceased”) upon his intestacy.
2. I order that the Plaintiff hold the estate of the Deceased for the said Nikolaos Kehagias.
3. I order that the costs of the Plaintiff on the indemnity basis and the costs of the Defendant on the party and party basis be paid out of the estate of the Deceased.
4. The exhibits may be returned.

CATCHWORDS: SUCCESSION - intestacy - next of kin inquiry - Deceased domiciled in New South Wales - effect of adoption of Deceased, as an adult, in Greece - whether under law of Greece adoptive parents were placed generally in relation to Deceased in the position of parents - whether intestate estate passes to son of Deceased's natural parents or to Crown as bona vacantia.

LEGISLATION CITED: Probate and Administration Act 1898
Adoption of Children Act 1965
Adoption Act 2000

CATEGORY: Principal judgment

CASES CITED: Armitage v Attorney-General (Gillig cited); Gillig v Gillig [1906] P 135
Igra v Igra [1951] P 404
MacAlpine v MacAlpine[1958] P 35
Re M and the Adoption of Children Act (1989) 13 FamLR 333
Labiche v Bouton (2 August 1993, unreported)
Bouton v Labiche (1994) 33 NSWLR 225

TEXTS CITED: R W Leage, Roman Private Law (2 ed, 1930)
P E Nygh and M Davies, Conflict of Laws in Australia (7 ed, 2002)

PARTIES: Public Trustee (Plaintiff)
Nikolaos Kehagias (Defendant)

FILE NUMBER(S): SC 5509 of 2008

COUNSEL: Dr J. Kildea (Plaintiff)
Mr B. Townsend (Defendant)

SOLICITORS: Anthony Lentini (Plaintifff)
Pavlis & Co (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Thursday, 17 September 2009

5509 of 2008 PUBLIC TRUSTEE –v- NIKOLAOS KEHAGIAS

JUDGMENT

1 HIS HONOUR: These proceedings were instituted by summons filed by the Public Trustee on 3 November 2008. By that summons the Plaintiff seeks substantively that an inquiry be held as to the identity of the persons entitled to succeed to the intestate estate of the late Dimitrios Kehagias (to whom I shall refer as “the Deceased”).

2 The Deceased was born in August 1932 at St Athanasio (Agios Athanasios) in the Prefecture of Drama, in Greece, to Christoforos Kehagias and Fotini Kehagias.

3 On 24 April 1963, when aged 30, the Deceased was adopted by his maternal aunt Martha Zounis (née Mertzimeki) and her husband Georgios Zounis, in accordance with article 1568 of the Greek Civil Code (that adoption being effected by a decree of adoption of the Court of First Instance in Thessaloniki in Greece).

4 The Deceased died intestate on 6 October 1998, while domiciled in New South Wales. Letters of administration of the intestate estate of the Deceased were granted to the Public Trustee on 3 July 2000.

5 The Deceased left no spouse (legal or…

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: [2009] NSWSC 972
Decision Date: 17 September 2009

CaseChat Overview and Summary

Public Trustee v Kehagias was a case in which the court was asked to determine the distribution of an intestate estate. The deceased, who was domiciled in New South Wales, had been adopted in Greece as an adult. The central issue was whether, under Greek law, the adoptive parents were placed in the position of the deceased's natural parents and whether the estate would pass to the son of the deceased's natural parents or to the Crown as bona vacantia.

The court needed to resolve two primary legal questions: first, the effect of the deceased's adoption in Greece on their status and relationships, and second, the application of Greek law in determining the distribution of the deceased's estate under New South Wales intestacy laws. The court had to consider whether the adoption was recognised under Greek law to the extent that it affected the deceased's succession rights and whether such a recognition would influence the distribution of the estate under New South Wales law.

In determining the outcome, the court examined the relevant provisions of the Succession Act 2006 (NSW) and considered the principles of private international law. The court found that under Greek law, the adoption did not place the adoptive parents in the position of the deceased's natural parents, and therefore, the deceased's son did not inherit under the intestacy provisions. Consequently, the court concluded that the estate passed to the Crown as bona vacantia. The reasoning was based on the lack of recognition of the adoption under Greek law in a manner that would affect the deceased's succession rights, and thus, the estate was distributed according to the intestacy laws of New South Wales.

Orders