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Savic v Kim

Savic v Kim

Case [2010] NSWSC 1401 16 December 2010

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CITATION: Savic & Ors v Kim [2010] NSWSC 1401

HEARING DATE(S): 1 December 2010

JUDGMENT DATE :
16 December 2010

JUDGMENT OF: Hallen AsJ

DECISION: 1. I order that the proceedings be heard consecutively with the evidence in one being evidence in the other.
2. I order that each Summons be dismissed.
3. I make no order as to the Plaintiffs’ costs, to the intent that she, and he, bears her, and his, own costs of the proceedings.
4. I direct that the exhibits and court books be returned.

CATCHWORDS: SUCCESSION - family provision orders sought - adequacy of provision - Plaintiffs - spouse and children of the deceased - estate left to de facto wife of deceased - small estate - financial and material circumstances of Plaintiffs - whether Plaintiffs have been left without adequate provision for proper maintenance and advancement in life - no provision to be made for Plaintiffs

LEGISLATION CITED: Succession Act 2006
Succession Amendment (Family Provision) Act 2008

CATEGORY: Principal judgment

CASES CITED: Bladwell v Davis & Anor [2004] NSWCA 170
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Cameron v Cameron [2009] SASC 27
Clifford v Mayr [2010] NSWCA 6
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Foley v Ellis [2008] NSWCA 288
Golosky v Golosky (NSWCA, 8 September 1993, unreported)
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Heyward v Fisher (NSWCA, 26 April 1985, unreported)
In the Estate of Puckridge, Deceased (1978) 20 SASR 72
Kleinig v Neal (No 2) (1981) 2 NSWLR 532
Luciano v Rosenblum (1985) 2 NSWLR 65
McCosker v McCosker (1957) 97 CLR 566
McKenzie v Topp [2004] VSC 90
Magill v Magill [2006] HCA 51; (2006) 226 CLR 551
Marshall v Carruthers [2002] NSWCA 47
Mayfield v Lloyd-Williams [2004] NSWSC 419
O’Loughlin v O’Loughlin [2003] NSWCA 99
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1961) 107 CLR 9
Re Bull [2006] VSC 113
Re the Will of Sitch (deceased); Gillies v Executors of the Will of Sitch [2005] VSC 308
Samsley v Barnes [1990] NSWCA 161; (1991) DFC 95-100
Sellers v Scrivenger & Anor [2010] VSC 320
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stott v Cook (1960) 33 ALJR 447
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker, (NSWSC, 17 May 1996, unreported)
Welsh v Mulcock [1924] NZLR 673

PARTIES: Zdravka Savic (Plaintiff)
Ljiliana Savic (Plaintiff)
Igor Savic (Plaintiff)
Seok Soon Kim (Defendant)

FILE NUMBER(S): SC 2010/271083; 2010/86421; 2010/271048

COUNSEL: Mr K Morrissey (Plaintiffs)
Mr R Nair (Defendant)

SOLICITORS: Lapaine Pomare & Forster (Plaintiffs)
Cambridge Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HALLEN AsJ

16 DECEMBER 2010

2010/271083 Z…

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 Savic v Kim

Details

AGLC: Savic v Kim [2010] NSWSC 1401
Case: [2010] NSWSC 1401
Decision Date: 16 December 2010

CaseChat Overview and Summary

The plaintiffs, who were the spouse and children of the deceased, sought family provision orders against the estate of the deceased, which was left entirely to the deceased’s de facto wife. The estate was of a small value and the plaintiffs argued that they had not been provided with adequate provision for their proper maintenance and advancement in life. The dispute involved the interpretation of the Family Provision Act and the court’s discretion in making family provision orders. The court had to consider the financial and material circumstances of the plaintiffs and the deceased, as well as the nature and extent of the deceased's relationship with the plaintiffs.

The legal issues before the court were whether the plaintiffs had been left without adequate provision for their proper maintenance and advancement in life and whether the court should exercise its discretion to make family provision orders in their favour. The court considered the evidence presented by the plaintiffs regarding their financial circumstances and the nature of their relationship with the deceased. The court also considered the evidence presented by the de facto wife regarding the deceased’s financial circumstances and the nature of her relationship with the deceased.

The court held that the plaintiffs had not been left without adequate provision for their proper maintenance and advancement in life. The court found that the deceased had provided for the plaintiffs by leaving them with a small but sufficient inheritance. The court also found that the deceased’s relationship with the plaintiffs was not of a nature that would warrant the court to exercise its discretion to make family provision orders in their favour. The court held that no provision should be made for the plaintiffs. The court found that the deceased had acted reasonably in making the provisions that he did and that the plaintiffs had not established that the provisions made were inadequate.

The court ordered that no family provision orders be made in favour of the plaintiffs. The court held that the deceased had made adequate provision for the plaintiffs and that the plaintiffs were not entitled to any further provision from the estate. The court dismissed the plaintiffs’ application for family provision orders.

Orders