Smoje v Forrester

[2017] NSWCA 308

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Smoje v Forrester [2017] NSWCA 308

Hearing dates:

24 August 2017

Date of orders:

04 December 2017

Decision date:

04 December 2017

Before:

Basten JA at [1];
Macfarlan JA at [2];
Meagher JA at [3]

Decision:

1. Appeal allowed.
2. Set aside orders 1, 2, 3 and 4 made on 30 May 2017 and in place thereof:
(a) dismiss the plaintiff’s summons;
(b) the defendant’s costs of the proceedings be paid out of the estate of the deceased (Miryana Smoje) on the indemnity basis.
3. Appellant’s costs of the appeal be paid out of the deceased’s estate on the indemnity basis.
4. The amount of $750,000 paid into court by the defendant be paid to the defendant’s solicitors or, if security was provided in lieu of that payment, that such security be delivered up to the defendant’s solicitors.

Catchwords:

SUCCESSION – family provision and maintenance – where deceased terminally ill and living in a hotel room – where respondent visited the deceased to provide her with care in the months preceding her death occasionally staying overnight – whether respondent and deceased were “living together” in a “close personal relationship” at the time of her death

  EVIDENCE – expert evidence – where primary judge made findings as to mental disability suffered by respondent – where no expert evidence as to existence of any such disability and how it might affect respondent’s behaviour or evidence – whether findings, including as to credibility, available

Legislation Cited:

Succession Act 2006 (NSW), ss 57, 59

Cases Cited:

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Strinic v Singh (2009) 74 NSWLR 419; [2009] NSWCA 15
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Category:

Principal judgment

Parties:

Neven Smoje (Appellant)
David Forrester (Respondent)

Representation:

Counsel:

 

M Painter SC and R Bianchi (Appellant)
I Coleman SC and L Clarke (Respondent)

 

Solicitors:

  Wills & Estates Legal Service (Appellant)
Turner Freeman (Respondent)

File Number(s):

2017/191999

Publication restriction:

None.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2017] NSWSC 482

Date of Decision:

4 May 2017

Before:

Lindsay J

File Number(s):

2015/00291238

Headnote

[This headnote is not to be read as part of the judgment]

In the months preceding her death, the deceased was living in a hotel room. She was terminally ill. The respondent, whilst residing in other accommodation, would visit her to provide care and support and occasionally spend the night sleeping on her floor. The primary judge (Lindsay J) found that the respondent was in a “close personal relationship” and “living together” with the deceased at the time of her death, and therefore eligible to make an application for provision out of the deceased’s estate. In doing so, his Honour viewed the respondent’s evidence in light of his asserted mental illness, which was not the subject of expert evidence. His Honour made…