Sims v Mackowiak Mackowiak v Mackowiak - [2011] NSWSC 1251

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sims v Mackowiak Mackowiak v Mackowiak [2011] NSWSC 1251
Hearing dates: 10 October 2011
Decision date: 08 November 2011
Jurisdiction: Equity Division
Before: Associate Justice Macready
Decision:
(1)The plaintiff Gemma Diane Sims shall receive:
(a) a bequest of the estate's interest in the Glebe property; and
(b) a legacy of $24,000
(2)The plaintiff Gemma Diane Sims must indemnify the estate in respect of any liability under the mortgage over the Glebe property from the date of this order onwards and from that date she is to have the benefit of any income received by way of rental from the Glebe property.
(3)The application by Anna Mackowiak is dismissed
(4)The plaintiff Gemma Diane Sims' costs on the ordinary basis and the defendant's costs on an indemnity basis be paid out of the estate of the deceased. In the claim of Anna Mackowiak, and subject to any submissions to the contrary, there be no order as to costs with the intent that each party bear their own costs.

Catchwords: WILLS AND ESTATES - Succession Act 2006 - applications for family provision orders - application by de facto partner of deceased granted - claim by mother of deceased that she was dependent on the deceased - application by mother out of time and dismissed
Legislation Cited: Succession Act 2006
Family Provision Act 1982
Cases Cited: Ball v Newey (1988) 13 NSWLR 489
Benney v Jones (1991) 23 NSWLR 559
Dare v Furness (1998) 44 NSWLR 493
Lewis v Lewis [2001] NSWSC 321
Massie v Laundy (unreported NSWSC, Young J, 7 February 1986)
McKenzie v Baddeley [1991] NSWCA 197
Petrohilos v Hunter (1991) 25 NSWLR 343
Porthouse v Bridge [2007] NSWSC 686
Singer v Berghouse (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin 221 CLR 191
Category: Principal judgment
Parties: Gemma Diane Sims (Plaintiff)
Anna Mackowiak (Plaintiff)
Roman Mackowiak (Defendant)
Representation: Counsel: Mr J Kearney (Plaintiff Gemma Diane Sims)
Plaintiff Anna Mackowiak in person
Defendant in person
Solicitors: Langes Lawyers (Plaintiff Gemma Diane Sims)
Plaintiff Anna Mackowiak not represented
Defendant not represented

File Number(s): 2010/308995 2011/190749

Judgment

This is the hearing of two claims under the Succession Act 2006 in respect of the estate of the late Peter Gregory Mackowiak who died on 17 September 2009 aged 32 years. The deceased was survived by Gemma Diane Sims, his de facto partner at the time of his death, who is a plaintiff in one of the proceedings, Anna Mackowiak, his mother, who is also a plaintiff in one of the proceedings, Roman Mackowiak, his father, the defendant in both proceedings and a brother Robert Mackowiak. Both matters have been heard together and I have ordered that the evidence in one matter be evidence in the other matter.

Last will of the deceased

The deceased Peter Mackowiak made his last will on 2 September 2009 shortly before his tragic death. Under that will he appointed his father, Roman Mackowiak, executor and…

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.

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Details

Case: [2011] NSWSC 1251
Decision Date: 08 November 2011

CaseChat Overview and Summary

In the case of Sims v Mackowiak, the deceased, Mackowiak, passed away leaving behind a will that made no provision for either Sims, his de facto partner, or Mackowiak's mother, who sought to claim dependency on the deceased. The matter came before the Supreme Court of Queensland, where both Sims and Mackowiak's mother filed separate applications for family provision orders under the Succession Act 2006. The central legal issues revolved around whether the applicants were dependent on the deceased and if their claims were made within the statutory time limit.

The court examined the statutory criteria for dependency under the Succession Act 2006. Sims argued that she had been in a de facto relationship with the deceased and had relied on him for financial support. On the other hand, Mackowiak's mother claimed that she had been financially dependent on her son. The court assessed both claims against the statutory requirements and the evidence presented. It concluded that Sims' application was within the time limit and that she had sufficiently demonstrated her dependency on the deceased. Conversely, Mackowiak's mother's application was found to be out of time, as it was filed beyond the permitted period.

The court granted Sims' application for a family provision order, recognising her dependency on the deceased and her eligibility under the statutory provisions. In contrast, the court dismissed Mackowiak's mother's application for lack of timeliness. The reasoning was grounded in the statutory provisions regarding the application of family provision orders and the requirement to file claims within the specified time frame. The court emphasised the importance of adherence to statutory deadlines in succession matters, highlighting the consequences for late applications. The final orders of the court were to grant Sims a family provision order and to dismiss the application by Mackowiak's mother.

Orders