Theocharous v Theocharous (No 2) - [2025] NSWSC 660

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Theocharous v Theocharous (No 2) [2025] NSWSC 660
Hearing dates: 6, 7 and 20 May; 13 June 2025
Date of orders: 13 June 2025
Decision date: 24 June 2025
Jurisdiction: Equity - Expedition List
Before: Parker J
Decision:
See [246]

Catchwords:
SUCCESSION — Family provision — Claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether factors warranting – whether deceased promised child provision – whether child suffered detriment due to reliance on alleged promises – whether a Crisp order should be made – whether estate assets were misappropriated – provision refused – no issue as to principle

Legislation Cited:
Succession Act 2006

Cases Cited:
Alexander v Jansson [2010] NSWCA 176
Browne v Dunn (1893) 6 R. 67
Harkness v Harkness (No 2) [2012] NSWSC 35
Neal v Brown [2024] NSWSC 841
Plunkett v Bull (1915) 19 CLR 544
Singer v Berghouse [1993] HCA 35
Slack v Rogan [2013] NSWSC 522
Theocharous v Theochaorus [2025] NSWSC 45
Watson v Foxman (1995) 49 NSWLR 315

Texts Cited:
John D. Firth, Christopher P. Conlon, Timothy M. Cox, Oxford Textbook of Medicine (6th ed, 2020, Oxford University Press)

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

File Number(s): 2023/00348486
Publication restriction: Nil

JUDGMENT

These proceedings concern the estate of the late Finikou Theocharous, who died in June 2023 at the age of 83. The plaintiff, who is one of her sons, makes an application for family provision under Chapter 3 of the Succession Act 2006 (“SA”).
The only significant asset in the estate is the former family home, a house at Marshall Street in Bankstown. The property was the subject of related proceedings in this Court for possession brought by the executor against the plaintiff, who had remained in occupation after the death of the deceased. The proceedings came before me in February this year and I made an order for possession in favour of the executor: Theocharous v Theochaorus [2025] NSWSC 45 (“J1”). After some delay, the order was complied with, and the plaintiff gave up possession of the property.
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 purchased by George Snr. After he died in 1998, the property passed to the deceased 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 there by Harris, who by that…

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: [2025] NSWSC 660
Decision Date: 24 June 2025

CaseChat Overview and Summary

The case before the court involved a dispute over a succession claim by an adult child, Theocharous, who sought provision from the deceased's estate. The deceased's estate was governed by the Succession Act 2006 (NSW), and the court was tasked with determining whether the factors in the case warranted the granting of a family provision order. The primary issues centred around whether the deceased had made promises to the child that warranted provision, whether the child had suffered detriment due to reliance on those alleged promises, and whether a Crisp order should be made. Additionally, the court considered whether the estate assets had been misappropriated.

The court examined the evidence presented regarding the deceased's alleged promises to the child and the child's reliance on those promises. It was determined that there was insufficient evidence to support the claim that the deceased had made specific promises that warranted provision. The court found that the child had not suffered a detriment due to reliance on any such promises, and therefore, the application for a family provision order was not supported by the evidence. Furthermore, the court concluded that the estate assets had not been misappropriated, and therefore, the application for a Crisp order was also unsuccessful.

The court's reasoning was based on a detailed examination of the evidence and the applicable statutory provisions. The court found that the child had not discharged the onus of proving that the deceased had made specific promises that warranted provision. The court held that the child's claim was not supported by the evidence, and therefore, the application for a family provision order was refused. The court also found that there was no basis for a Crisp order, as the estate assets had not been misappropriated. The court's decision was based on a careful consideration of the evidence and the applicable legal principles.

The final orders of the court were that the application for a family provision order and the application for a Crisp order were both refused. The court held that the deceased had not made specific promises that warranted provision, and the child had not suffered a detriment due to reliance on any such promises. The court also found that the estate assets had not been misappropriated, and therefore, there was no basis for a Crisp order. The court's decision was based on a detailed examination of the evidence and the applicable statutory provisions.

Orders