Sitki v Sitki; Sitki v Aksoy - [2016] NSWSC 1396

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Sitki v Sitki; Sitki v Aksoy [2016] NSWSC 1396
Hearing dates: 22 and 23 September 2016
Decision date: 30 September 2016
Jurisdiction: Equity - Family Provision List
Before: Stevenson J
Decision:
Further provision to be made for widow; claim for provision by adult daughter to be dismissed

Catchwords: SUCCESSION – FAMILY PROVISION – claim for provision by widow – widow given only life interest in properties – lengthy and happy marriage – common ground such provision not adequate – what further provision should be made – claim for provision by adult daughter from earlier marriage – whether daughter has shown that provision from will of interest in properties in Cyprus as affected by Cypriot/Turkish law not adequate
Legislation Cited: Family Law Act 1975 (Cth)
Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Andrew v Andrew (2012) 81 NSWLR 656; NSWCA 308
Bladwell v Davis [2004] NSWCA 170
Ciric v Ciric [2015] NSWSC 313
Cross v Wasson [2009] NSWSC 378
Epov v Epov; Epov v Epov [2014] NSWSC 1086
Friend v Brien [2014] NSWSC 613
Gersbach v Blake [2011] NSWSC 368
Gorton v Parks (1989) 17 NSWLR 1
Graham v Graham [2011] NSWSC 504
Hedman v Frazer; Egan v Frazer [2013] NSWSC 1915
Keep v Bourke [2012] NSWCA 64
Lajcarova v Todorov [2011] NSWSC 522
Luciano v Rosenblum (1985) 2 NSWLR 65
Manuel v Lane [2013] NSWCA 61
McKenzie v Topp [2004] VSC 90
Nowak v Beska [2013] NSWSC 166
Phillips v James (2014) 85 NSWLR 619; NSWCA 4
Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; HCA 19
Salmon v Osmond [2015] NSWCA 42
Singer v Berghouse (No 2) (1994) 181 CLR 201; HCA 40
Verzar v Verzar [2014] NSWCA 45
Category: Principal judgment
Parties: Hatice Sitki (Plaintiff/Second Cross-Defendant)
Binnaz Sitki (First Defendant/Cross-Claimant)
Ilay Aksoy (Second Defendant/First Cross-Defendant)
Representation:
Counsel:
D Blackah (Plaintiff/Second Cross-Defendant)
L Ellison SC with S L Warren (First Defendant/Cross-Claimant)
G J Smith (Second Defendant/First Cross-Defendant)
Solicitors:
Hakki Nami Solicitor (Plaintiff/Second Cross-Defendant)
TressCox Lawyers (First Defendant/Cross-Claimant)
Lane & O’Rourke (Second Defendant/First Cross-Defendant)

File Number(s): SC 2015/184836

Judgment

Mehmet Sitki died on 26 November 2014, aged 73.
He was survived by his widow, Binnaz, who was his third wife. They married on 27 May 1984. He was also survived by his adult daughters, Hatice and Ilay (who are aged 50 and 46 respectively) born to his first wife, Muserref. Muserref died in 1998.
The deceased was briefly married, evidently in 1981, to a woman named Sema (who cannot now be located) prior to his marriage to his widow. In due course, I will make an order under s 61(2)(b) of the Succession Act 2006 (NSW) that service on Sema is now impracticable.
For convenience, and without intending any disrespect, I will refer to the deceased’s daughters by their given names. I will refer to his widow as Mrs…

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 Sitki v Sitki; Sitki v Aksoy 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: [2016] NSWSC 1396
Decision Date: 30 September 2016

CaseChat Overview and Summary

The proceedings before the court involved a widow and an adult daughter, both of whom sought additional provision from the estate of the deceased, under the Family Provision Act 1969 (Cth). The widow, who had enjoyed a life interest in the deceased's properties, argued that her entitlement under the will was inadequate. The adult daughter from the deceased's earlier marriage also contended that the property left to her under the will, specifically an interest in properties in Cyprus, was insufficient. The court was required to determine the adequacy of the provisions made for both the widow and the daughter and to decide on any additional provision that should be granted.

The primary legal issues before the court were the adequacy of the provisions made for the widow and the daughter, and the applicable law in determining the adequacy of the daughter's provision, specifically the Cypriot/Turkish law. The court had to consider the length and quality of the marriage between the deceased and the widow, and the contributions made by the widow to the estate. For the daughter, the court needed to apply the relevant foreign law to assess the adequacy of the property left to her by the deceased. The court also had to determine whether the daughter had demonstrated that the provision made was not adequate.

The court concluded that the provision made for the widow was not adequate given the length and quality of her marriage to the deceased. The court noted that the widow had made significant contributions to the marriage and the estate, and that the life interest provided in the will was insufficient. As for the daughter, the court found that the provision made for her was adequate when assessed under the applicable Cypriot/Turkish law. The court determined that the daughter had not shown that the property left to her was not adequate. The court therefore dismissed both claims for additional provision.

The court did not make any orders for additional provision for either the widow or the daughter. The provisions made for the widow and the daughter under the will were upheld as adequate, and no further provision was granted.

Orders