Rapaich v Rapaich - [2021] NSWSC 992

Supreme Court

New South Wales

Medium Neutral Citation: Rapaich v Rapaich [2021] NSWSC 992
Hearing dates: 9 August 2021
Decision date: 09 August 2021
Jurisdiction: Equity - Expedition List
Before: Sackar J
Decision:
See paras [31]-[35]

Catchwords:
SUCCESSION — Family Provision — Proper construction of orders made following settlement — Whether provision should be made for portable life estate based upon Crisp v Burns Philp Trustee Company Ltd

Legislation Cited:
Succession Act 2006 (NSW)

Cases Cited:
Crisp v Burns Philp Trustee Co Ltd (NSWSC, 18 December 1979, unreported)
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7
Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 245 CLR 104; [2015] HCA 37
Toll (FGCT) Pty Ltd v Alphapham Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.

Category: Consequential orders
Parties: Milka Rapaich (plaintiff)
Zorica Rapaich (defendant)
Representation: Counsel:
K Morrisey (plaintiff)
L Ellison SC (defendant)
Solicitors:
Safe Harbour Lawyer (plaintiff)
Coleman Greig Lawyers

File Number(s): 2020/143713

Judgment

The Proceedings

On 6 April 2021 the Court made final orders as a result of a settlement reached between the parties. On that day the matter was listed for hearing.
The orders made had the effect of granting the plaintiff additional provision pursuant to the Succession Act 2006 (NSW) (“Succession Act”).
A dispute has now arisen as to the proper construction of order 2 of the orders made.
Order 2 in is the following terms:

In addition to the provision received by the plaintiff in clause 3(a) of the Will of Milan Rapaich dated 10 April 2007, the plaintiff receive from the proceeds of sale of the estate realty the benefit of a sum not exceeding $550,000 (which sum shall become available upon the completion of the sale of the estate realty) with the defendant to purchase or otherwise provide and hold for the plaintiff’s use and occupation from time to time, the right to have provided to or for her by a church, government, or other reputable or private institution or organisation providing the same for elder, retired, sick or incapacitated persons, accommodation with or without health care, hospitalisation and nursing or one or more of such services or like services for her lifetime at a net cost of no more than $550,000 with the said sum (or the net proceeds thereof) forming part of the deceased’s residuary estate upon the plaintiff’s death, such residuary estate to be dealt with pursuant to clause 4 of the Will of the deceased.

The dispute has arisen as to whether the words the “sum not exceeding $550,000” is to be paid to or for the benefit of the plaintiff in respect of services other than accommodation provided to her by the institutions in which she lives and as a lump sum rather than a capped amount.
The question in my view that arises is one of construction.
In the alternative although…

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 Rapaich v Rapaich

Details

AGLC: Rapaich v Rapaich [2021] NSWSC 992
Case: [2021] NSWSC 992
Decision Date: 09 August 2021

CaseChat Overview and Summary

The case involved a dispute between the parties regarding the proper construction of orders made following a settlement. The court was required to determine whether provision should be made for a portable life estate based on the principles established in Crisp v Burns Philp Trustee Company Ltd. The dispute arose from the interpretation of the terms of a settlement agreement and the subsequent orders made by the court in relation to the distribution of the estate. The case involved a complex family provision claim, where the court had to balance the rights of different family members against each other.

The legal issues before the court were whether the orders made following the settlement should be interpreted in a way that provided for a portable life estate and whether the principles established in Crisp v Burns Philp Trustee Company Ltd should be applied in this case. The court had to consider the specific language used in the settlement agreement and the orders made by the court, as well as the relevant legal principles and precedents. The court had to determine whether the language used in the settlement agreement and orders was clear and unambiguous or whether it required interpretation.

In reaching its decision, the court considered the language used in the settlement agreement and orders, as well as the relevant legal principles and precedents. The court held that the language used in the settlement agreement and orders was clear and unambiguous and did not provide for a portable life estate. The court held that the principles established in Crisp v Burns Philp Trustee Company Ltd did not apply in this case, as the settlement agreement and orders did not contain any language that would require interpretation in a way that provided for a portable life estate. The court therefore dismissed the claim for a portable life estate.

The court's decision provides guidance for practitioners in relation to the interpretation of settlement agreements and orders made by the court. The court's decision also provides guidance in relation to the application of the principles established in Crisp v Burns Philp Trustee Company Ltd. The court's decision is likely to be of particular relevance to practitioners dealing with family provision claims and the interpretation of settlement agreements and court orders.

Orders