Re Carbo; Partosh v Czarnik - [2017] VSC 686

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S CI 2016 02588

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE MATTER of the estate of ARTHUR CARBO, deceased

LISA JANE PARTOSH	Plaintiff
v
KLAUS CZARNIK (in his capacity as executor of the will of ARTHUR CARBO, deceased)	Defendant

---

JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	14 November 2017
CASE MAY BE CITED AS:	Re Carbo; Partosh v Czarnik
MEDIUM NEUTRAL CITATION:	[2017] VSC 686 First Revision 19 December 2017

---

EVIDENCE — Defendant’s objection to plaintiff’s affidavits — Whether matters objected to are inadmissible or should otherwise be excluded — No point of principle.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKenzie	Constable Connor & Co Pty Ltd
For the Defendant	Mr C Mantziaris	Schweizer Kobras Pty Ltd

HER HONOUR:

Introduction

Arthur Carbo died on 12 August 2013 (‘the deceased’). Probate of his will dated 17 February 2004 was granted to the defendant on 12 January 2016. The defendant is the beneficiary of the estate of the deceased.

On 4 July 2016, the plaintiff issued this proceeding claiming provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958.[1] In 2005, the deceased was suffering from a number of conditions including Alzheimer’s disease and vascular dementia. From October 2005 until his the death, the plaintiff was a paid companion of the deceased. The plaintiff claims provision from the estate of the deceased on the basis that her relationship with him was ‘akin to that of a father and daughter’.
[1]The deceased died before the amendments to the Act made by the Justice Legislation Amendment (Succession and Surrogacy) Act 2014 so that the applicable legislation is the version of the Administration and Probate Act 1958 in force prior to 1 January 2015: Justice Legislation Amendment (Succession and Surrogacy) Act 2014, s 5.

At the first directions hearing, the plaintiff claimed one eighth of the estate as provision from the estate, which equates to approximately $1 million. At the last directions hearing, she modified her claim substantially and now seeks $200,000 to $250,000.

The plaintiff has filed nine affidavits in support of her application:

(a) affidavit of Lisa Jane Partosh (‘the plaintiff’) sworn 27 October 2016;

(b) affidavit of the plaintiff sworn 1 August 2017;

(c) affidavit of Caterina Tosto sworn 21 December 2016;

(d) affidavit of Carmelo Comobreco sworn 21 December 2016;

(e) affidavit of Peter Hollasbacher sworn 12 January 2017;

(f) affidavit of Michelle Di Donna sworn 12 January 2017;

(g) affidavit of Michelle Di Donna sworn 2 August 2017;

(h) affidavit of Eric Sidney Katz sworn 2 February 2017; and

(i) affidavit of Matcha Patsak sworn 9 February 2017.

On 18 August 2017, the proceeding was listed for pre-trial directions. In anticipation of this hearing, the parties filed a joint memorandum 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.

Keep reading for free

Create a free CaseChat account to read Re Carbo; Partosh v Czarnik and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSC 686
Decision Date: 14 November 2017

CaseChat Overview and Summary

In the case of Re Carbo; Partosh v Czarnik, the parties involved were Partosh and Czarnik, engaged in a legal dispute concerning the admissibility of certain affidavits presented by Partosh. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the affidavits submitted by Partosh contained matters that should be excluded from consideration, either because they were inadmissible or for other reasons.

The legal issues addressed by the court included the proper scope and relevance of the evidence presented in the affidavits, as well as the application of rules governing the admissibility of such evidence. Specifically, the court needed to determine whether the objections raised by Czarnik to certain parts of Partosh's affidavits were justified, and if so, whether these objections had any bearing on the outcome of the case. The court considered the relevance and admissibility of the evidence under the relevant rules of procedure and evidence.

In reaching its decision, the court concluded that the objections raised by Czarnik did not point to any significant principle that would necessitate the exclusion of the contested evidence. The court found that the matters objected to by Czarnik were either admissible or did not warrant exclusion on other grounds. Consequently, the court ruled that the objections did not impact the overall proceedings. The court's decision was based on a detailed analysis of the content of the affidavits and the applicable legal standards.

The final orders of the court were that the objections raised by Czarnik to the affidavits of Partosh were not upheld, and the evidence contained therein would be considered in the proceedings. The court determined that there was no substantial point of principle that would alter the admissibility or relevance of the evidence presented in the affidavits.

Orders