Medium Neutral Citation: Pulitano v Pulitano [2019] NSWSC 1688
Hearing dates: 22, 23 and 24 May 2019. Last written submissions received 7 June 2019.
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction: Equity
Before: Henry J
Decision:
(1) Pursuant to s 59 Succession Act 2006 (NSW), the plaintiff to receive a lump sum of $470,000 out of the estate of the late Rocco Pulitano (deceased).
(2) Unless either party makes an application for a different costs order within 14 days, the plaintiff’s costs of the proceedings, calculated on an ordinary basis, and the defendant’s costs of the proceedings, calculated on an indemnity basis, be paid out of the estate of the deceased.

Catchwords: SUCCESSION – family provision – claim by adult son – evidence of difficult relationship between plaintiff and deceased before estrangement – evidence that plaintiff subjected to physical abuse by the deceased during childhood – scope of the deceased’s moral obligation to provide for the plaintiff – where plaintiff has significant financial need – where plaintiff has experienced periods of drug addiction and incarceration – where plaintiff had made past contributions to estate – causes of estrangement – no competing claims on the estate – where deceased had offered to help the plaintiff prior to estrangement
Legislation Cited: Succession Act 2006 (NSW), ss 59, 60, 61, 78, 79, 80, 81, 82, 85, 88, 100
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Burke v Burke [2015] NSWCA 195
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Ford v Simes [2009] NSWCA 351
Gail Patricia Stone v Michael John Stone [2019] NSWSC 233
Gorton v Parks (1989) 17 NSWLR 1
Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843
Harris v Harris [2018] NSWSC 552
Jones v Dunkel (1959) 101 CLR 298
Keep v Bourke [2012] NSWCA 64
Litchfield v Smith & Tingate [2010] VSC 466
Newman v Newman [2015] NSWSC 1207
Philpott v Pantos [2018] NSWSC 852
Poletti v Jones [2015] NSWCA 107
Re Filomena Rodi, deceased [2016] NSWSC 1696
Rogers v Rogers [2018] NSWSC 1982
Sammut v Kleemann [2012] NSWSC 1030
Sgro v Thompson [2017] NSWCA 326
Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Slack-Smith v Slack-Smith [2010] NSWSC 625
Steinmetz v Shannon [2019] NSWCA 114
Underwood v Gaudron [2015] NSWCA 269
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48
Williamson v Williamson [2011] NSWSC 228
Category: Principal judgment
Parties: Anthony Pulitano (plaintiff)
Nelia Bayon-On Pulitano (defendant)
Representation:
Counsel:
J E F Brown w/ N Condylis (plaintiff)
B Oliak (defendant)
Solicitors:
Turnbull Hill Lawyers (plaintiff)
De Pasquale Lawyers (defendant)

File Number(s): 2017/00379670
Publication restriction: Nil

Judgment

In these proceedings, the plaintiff, Anthony Pulitano, claims provision out of the estate of his late father, Rocco Pulitano who died on 4 February 2017 (the deceased), pursuant…

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 Pulitano v Pulitano

Details

AGLC: Pulitano v Pulitano [2019] NSWSC 1688
Case: [2019] NSWSC 1688
Decision Date: 29 November 2019

CaseChat Overview and Summary

The case of Pulitano v Pulitano involved a claim by the plaintiff, an adult son, for family provision from his deceased father's estate. The deceased had passed away without making any provision for the plaintiff in his will, leading the plaintiff to seek an order under the Family Provision Act. The dispute centred on whether the deceased's moral obligation to provide for the plaintiff extended to meeting his financial needs, given the challenging history between them.

The court was tasked with assessing the scope of the deceased's moral obligation, particularly in light of the difficult relationship between the plaintiff and the deceased, which had been marked by physical abuse during the plaintiff's childhood and periods of estrangement. The court had to weigh the plaintiff's significant financial need against his past contributions to the estate, as well as the causes of the estrangement. The absence of competing claims on the estate and the deceased's previous offer to help the plaintiff before the estrangement were also considered.

The court concluded that the deceased's moral obligation to provide for the plaintiff was significant enough to warrant a family provision order. The evidence of the difficult relationship and the abuse suffered by the plaintiff during his childhood played a crucial role in this determination. The court found that the plaintiff's financial need and the lack of competing claims on the estate supported the plaintiff's claim. The court ultimately ordered the deceased's estate to make a family provision payment to the plaintiff.

Orders