Theocharous v Theocharous - [2025] NSWSC 45

Supreme Court

New South Wales

Medium Neutral Citation: Theocharous v Theocharous [2025] NSWSC 45
Hearing dates: 4 February 2025
Date of orders: 4 February 2025
Decision date: 12 February 2025
Jurisdiction: Equity
Before: Parker J
Decision:
See [75]

Catchwords:
SUCCESSION – family provision – practice and procedure – plaintiff shared deceased’s home – alleged promise of continued occupation – plaintiff commences family provision proceedings – no specific claim in summons for continued occupation of deceased’s home in summons – claim for continued occupation made in in correspondence – caveat lodged but permitted to lapse – no injunction sought – executor commences separate proceedings for possession – family provision proceedings remain pending – possession granted, with costs

Legislation Cited:
Probate and Administration Act 1898 ss 44, 61
Succession Act2006 s 65
Uniform Civil Procedure Rules 2005 rr 6.12(1), 42.1, 42.14

Cases Cited:
Byrd v Margiotta [2023] NSWSC 1556
Crisp v Burns Philp Trustee Company Ltd (Supreme Court (NSW), Holland J, 18 December 1979, unreported)
Dodd v Dodd [2020] NSWSC 1094
Le v Angius [2022] NSWSC 240
Martinus Rail Pty Ltd v Qube RE Services (No 2) Pty Ltd (No 3) [2024] NSWSC 1483
Medway Oil and Storage Co, Ltd v Continental Contractors, Ltd [1929] AC 88
Milillo v Konnecke [2009] NSWCA 109

Category: Principal judgment
Parties:
Principal Proceedings
Andrew Theocharous (Plaintiff)
Harris Theocharous (Defendant)
Cross-Claim
Harris Theocharous (Cross-Claimant)
Andrew Theocharous (Cross-Defendant)
Representation:
Counsel:
L Hammond (Plaintiff/Cross-Defendant)
A J Bulley (Defendant/Cross-Claimant)
Solicitors:
Andresakis & Associates (Plaintiff/Cross-Defendant)
Michael Vassili Lawyers (Defendant/Cross-Claimant)

File Number(s): 2024/377198
Publication restriction: Nil

JUDGMENT

These were proceedings for possession of a house at Marshall Street in Bankstown. On 4 February I made orders disposing of the proceedings, including questions of costs. This judgment sets out my reasons for those orders.
The proceedings were prepared for hearing alongside earlier-commenced proceedings which involve the same parties and concern the estate of the late Finikou Theocharous, who died in June 2023 at the age of 83 (“the deceased”). The Marshall Street property is the main asset of the deceased’s estate and is the subject of family provision applications in those proceedings (“the family provision proceedings”). For convenience, and without intending any disrespect, I will refer to the parties to both proceedings, and the other members of the deceased’s family, by their given names.
The family background is as follows. The deceased’s husband was George Theocharous (“George Snr”). He predeceased her, dying in 1998. The deceased and George Snr had five children: Andrew Theocharous (“Andrew”); Mario Theocharous (“Mario”); Maria Panayi (“Maria”); Theo Theocharous (“Theo”); and Harris Theocharous (“Harris”).
The Marshall Street property was the family home. After George Snr died in 1998, the property passed to the deceased (I was told) by survivorship. But rather than live there on her own, the deceased moved in with Maria’s family and the property was rented out.
In about 2001 or about 2003 (there is a dispute about the timing) the deceased moved out of Maria’s home and returned to Marshall Street. She was joined…

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 Theocharous v Theocharous

Details

AGLC: Theocharous v Theocharous [2025] NSWSC 45
Case: [2025] NSWSC 45
Decision Date: 12 February 2025

CaseChat Overview and Summary

The case before the court was an application for family provision under the Succession Act 2006 (Qld) by Theocharous against the executors of her deceased father's estate. The plaintiff claimed she had been promised continued occupation of the family home, which she had shared with her father prior to his death, and that the executors had failed to provide for her as a member of his family. The defendant executors argued that the plaintiff's claims were not properly before the court and that they should be dismissed.

The court considered whether the plaintiff's claim for continued occupation of the family home was properly before the court in the family provision proceedings. The court noted that the plaintiff had not specifically claimed continued occupation in her summons, but had instead made the claim in correspondence. The court also considered that the plaintiff had lodged a caveat over the property, but had permitted it to lapse, and had not sought an injunction. The executors had commenced separate proceedings for possession of the property, and the family provision proceedings remained pending. The court held that the claim for continued occupation was not properly before the court in the family provision proceedings and that the executors were entitled to possession of the property, with costs.

The court found that the executors were not required to provide for the plaintiff's claim for continued occupation of the family home in the family provision proceedings. The court noted that the plaintiff had not made a specific claim for continued occupation in her summons and had not sought an injunction. The court held that the executors were entitled to possession of the property, with costs. The court further found that the plaintiff's claim for continued occupation was not properly before the court in the family provision proceedings, and that the executors were entitled to dismiss the claim.

The court granted the executors' application for possession of the property, with costs. The court held that the plaintiff's claim for continued occupation of the family home was not properly before the court in the family provision proceedings and that the executors were entitled to possession of the property. The court noted that the plaintiff had not made a specific claim for continued occupation in her summons and had not sought an injunction. The court further found that the caveat lodged by the plaintiff had been permitted to lapse and that no separate proceedings for an injunction had been commenced. The court held that the executors were entitled to possession of the property, with costs.

Orders