Spata v Tumino

Case [2018] NSWCA 17

Court of Appeal


Supreme Court


New South Wales

  • Summary available
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Medium Neutral Citation: Spata v Tumino [2018] NSWCA 17
Hearing dates: 27 November 2017
Date of orders: 15 February 2018
Decision date: 15 February 2018
Before: Macfarlan JA at [1]
Payne JA at [2]
Sackville AJA at [130]
Decision:

(1)   Appeal dismissed;

 

(2)   Cross-appeal dismissed;

 (3)   Order that the appellant pay 70% of the costs
of the respondents of the appeal and the cross-
appeal.
Catchwords: SUCCESSION – family provision – eligibility – whether appellant dependent or partly dependent on the deceased for accommodation – whether circumstances warranting making the claim – whether adequate provision for the proper maintenance and advancement of appellant
Legislation Cited: Family Law Act 1975 (Cth)
Succession Act 2006 (NSW), s 57(1)(e)(i)
Succession Amendment (Family Provision) Act 2008 (NSW)
Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW)
Cases Cited: Aafjes v Kearney (1976) 180 CLR 199; [1976] HCA 5
Amaca Pty Ltd v Novek, [2009] NSWCA 50
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Aubrey v Kain [2014] NSWSC 15
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers and Managers Appointed) (2011) 244 CLR 1; [2011] HCA 18
Ball v Newey (1988) 13 NSWLR 489
Barnes v Barnes (2003) 214 CLR 169; [2003] HCA 9
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Churton v Christian (1988) 13 NSWLR 241
Clinch v Swift 13 October 1988, unreported
Costa v Public Trustee [2008] NSWCA 223
DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Gett v Tabet [2009] NSWCA 76; 254 ALR 504
House v King (1936) 55 CLR 499; [1936] HCA 40
Kauri Timber Co (Tas) Pty Ltd v Reeman (1973) 128 CLR 177; [1973] HCA 8
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Lodin v Lodin [2017] NSWCA 327
McKenzie v Baddeley [1991] NSWCA 197
McKenzie v Topp [2004] VSC 90
Middleton v Kiama District Hospital [1970] 3 NSWR 136
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Sassoon v Rose [2013] NSWCA 220
Page v Page [2017] NSWCA 14
Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522
Petrohilos v Hunter (1991) 25 NSWLR 343
Re Fulop deceased; Fulop v Public Trustee (1987) 8 NSWLR 679
Sanderson as Liquidator of Sakr Nominees Pty Ltd (in liq) v Sakr (2017) 93 NSWLR 459; [2017] NSWCA 38
Shaw v Lambert 9 October 1987, unreported
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Spata v Tumino; Estate of Gina Spata [2017] NSWSC 111
Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11
Warren v Coombes…

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AGLC
Spata v Tumino [2018] NSWCA 17
Case
[2018] NSWCA 17
Decision Date

CaseChat Overview and Summary

The appeal concerned a family provision claim brought by the appellant, Ms. Spata, against the estate of the deceased, Mr. Tumino. The primary dispute revolved around whether Ms. Spata was eligible to make a claim under the relevant legislation, specifically whether she was a "dependent" or "partly dependent" on the deceased for accommodation at the time of his death, and whether the circumstances warranted making the claim. The matter was heard in the Court of Appeal of New South Wales.

The Court of Appeal was required to determine two principal legal issues. Firstly, whether the primary judge erred in finding that Ms. Spata was not a person for whom adequate provision had been made for her proper maintenance and advancement in life. Secondly, the Court considered whether Ms. Spata was eligible to bring the family provision claim, focusing on the interpretation of "dependent" and "partly dependent" in the context of accommodation.

In dismissing the appeal and cross-appeal, the Court of Appeal affirmed the primary judge's decision. The Court reasoned that Ms. Spata had not established that she was dependent or partly dependent on the deceased for accommodation. The evidence did not support a finding that the deceased had provided her with accommodation in a manner that would satisfy the statutory requirements for dependency. Consequently, the Court concluded that Ms. Spata was not eligible to make a family provision claim, and therefore, the primary judge had correctly determined that no adequate provision had been made because the claim itself was not maintainable. The Court ordered that Ms. Spata pay 70% of the respondents' costs of the appeal and cross-appeal.

Orders

Orders of the court

(1) Appeal dismissed;

(2) Cross-appeal dismissed;

(3) Order that the appellant pay 70% of the costs

of the respondents of the appeal and the cross-

appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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