Savvaki v Papargyriou - [2008] NSWSC 830

CITATION: Savvaki v Papargyriou [2008] NSWSC 830
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/08/08, 12/08/08

JUDGMENT DATE :
14 August 2008

JURISDICTION: Equity jurisdiction

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 14 August 2008

DECISION: Paragraph 87

CATCHWORDS: Family Provision. Application by defacto partner in respect of small estate. Order for provision of whole estate to plaintiff.

PARTIES: Catherine Savvaki v Con Papargyriou (Estate of Gregory Papargyriou)

FILE NUMBER(S): SC 2226/06

COUNSEL: Mr P Blackburn-Hart SC for plaintiff
Mr M White for defendant

SOLICITORS: Lane & O'Rourke Solicitors for plaintiff
Truman Hoyle Lawyers for defendant

- 1 -

SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 14 AUGUST 2008

2226/06 CATHERINE SAVVAKI (AKA KATERINA SAVVAKI) v CON PAPARGYRIOU AS EXECUTOR OF THE ESTATE OF GREGORY PAPARGYRIOU

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Gregory Papargyriou who died on 9 June 2005 aged 65 years. The deceased was survived by the plaintiff, with whom he had lived in a defacto relationship for 32 years.

2 The only other eligible persons are the plaintiff’s son, who lived with the plaintiff and the deceased from the age of five years until he was 32 years of age in 1999. He makes no claim and supports his mother’s application.

The last will of the deceased

3 The deceased made his last will on 28 April 1995, only a few years after he started living with the plaintiff. Under that will in the circumstances which have occurred the whole of his estate passed to the defendant, who is the deceased’s brother. He also was appointed as executor of the will.

The estate of the deceased

4 The deceased and the plaintiff lived at a property at Earlwood which was held by them as joint tenants. The property passed by survivorship to the plaintiff subject to an interest in the property held by their son, the details of which I will return to later.

5 The balance of the estate was mainly comprises of a half share in another property at Enmore held by the deceased and the plaintiff as tenants in common.

6 By the time of the hearing the estate of the deceased comprised the following:

Enmore property (half interest) $375,000.00
Nissan motor vehicle` $ 25,000.00
Bank account $ 345.92
Shares $ 736.00
Cash $ 10,000.00
Personalty $ 10,950.00

7 There are the following liabilities:

Half share costs of sale of Enmore $ 12,500.00
Half mortgage on Enmore $ 21,002.44
2005 income tax $ 692.00
2006 tax and accountant’s fees $ 1,200.00
Funeral expenses $ 12,520.00
Legal costs of probate $ 5,995.23
Headstone $ 9,400.00
Return from cash $ 2,500.00
Cost of the proceedings (est)
(both parties excluding defendant’s
costs thrown away on 3/3/08) $190,267.60
This provides a net estate of: $165,954,65

8 The costs are…

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 Savvaki v Papargyriou

Details

AGLC: Savvaki v Papargyriou [2008] NSWSC 830
Case: [2008] NSWSC 830
Decision Date: 14 August 2008

CaseChat Overview and Summary

The case of Savvaki v Papargyriou involved a dispute under the Family Provision Act 1969. The plaintiff, Savvaki, sought provision from the estate of the deceased, her de facto partner, Papargyriou. The estate was relatively small, and Savvaki applied for the entire estate to be provided to her. The matter was heard in the Supreme Court of New South Wales, where the judge was required to determine whether the deceased had made adequate financial provision for Savvaki and whether any adjustment was necessary to ensure proper provision.

The central legal issue was whether the deceased had made adequate provision for Savvaki, considering their de facto relationship and the size of the estate. Savvaki argued that the deceased had failed to provide for her adequately, and she sought an order for the entire estate. The court was required to assess the adequacy of the provision made by the deceased and consider whether the statutory criteria were satisfied. The court also needed to consider whether it should make an order for proper provision under section 46 of the Family Provision Act 1969.

The court found that the deceased had not made adequate provision for Savvaki, taking into account the duration of their relationship, the contributions made by Savvaki to the relationship, and the size of the estate. The court considered that the deceased had not provided for Savvaki's needs adequately and that the statutory criteria were not satisfied. The court then exercised its discretion to make an order for proper provision, awarding the entire estate to Savvaki. The court concluded that this was necessary to ensure that Savvaki was provided for in accordance with the principles of the Family Provision Act 1969. The court's decision was based on a comprehensive analysis of the relationship and the deceased's provision for Savvaki.

The final order of the court was that the entire estate of the deceased was to be provided to Savvaki. This decision ensured that Savvaki received proper provision in accordance with the Family Provision Act 1969, recognising her contributions to the relationship and the deceased's failure to make adequate provision.

Orders