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 stage had been divorced from his former wife.
The deceased lived with Harris at Marshall Street until 2022 or thereabouts (again the timing is disputed) when she was admitted to a nursing home in Yagoona. Harris continued, and continues since the deceased’s death, to live at Marshall Street.
The deceased’s last will was made in 2012. It is in conventional form. The deceased appointed Andrew as her executor. The assets in her estate were to be realised, her debts discharged, and the proceeds divided between her children in five equal shares. Probate of the will was granted to Andrew in April last year. The Marshall Street property was later transmitted to him as executor.

Claim for determination

The family provision proceedings were commenced in late 2023. Andrew, as executor, is the defendant. Originally, both Harris (as first plaintiff) and Mario (as second plaintiff) made claims for provision in the proceedings. The claim by Mario was not pursued.
The possession proceedings were commenced by Andrew as executor late last year. They resulted in both proceedings (which, it was thought, would be heard together) being transferred to the Expedition List and allocated a hearing date in February.
But a few days before the hearing was to begin, further evidence, including a recording referred to below, was served by Harris’ solicitors. This made an adjournment of the family provision proceedings necessary. I was, however, as already mentioned, able to deal with the possession proceedings.
In the end there was no real dispute about Andrew’s entitlement, as executor, to possession. The debate in the proceedings only concerned costs. I ordered Harris to pay the costs of the proceedings on the ordinary basis up to 4pm on 30 January and thereafter on the indemnity basis (the indemnity costs order resulted from Harris’ failure to accept an offer of compromise served on behalf of Andrew: J1 [72]-[74]). The order did not include costs common to the two proceedings, which I decided should follow the outcome of the family provision proceedings: J1 [64]-[71].
Despite accepting, through his counsel, that he could not sustain a claim for possession of the Marshall Street property, Harris remained in occupation after the Court had made an order for possession against him. He said (as he had said throughout the possession proceedings) that he had nowhere else to go. He tried to put Andrew to the trouble (and, as Harris appears to have seen it, to make Andrew shoulder the moral opprobrium) of applying for a formal writ of possession. At the same time, through his counsel, he continued to press me for an expedited hearing of his family provision claim.
This approach was calculated to increase the costs of administering the deceased’s estate, to the detriment of all of the beneficiaries. Eventually, I had to tell Harris, through his counsel, that he could not expect to have the privilege of having his claim expedited if he kept dragging his feet on giving up possession. Even then, there was further delay before Harris eventually vacated on 16 April.
The possession order deprived the case of the urgency which had originally resulted in it being granted an expedited hearing. Nevertheless, I retained the family provision proceedings in the Expedition List at the request of the parties while Harris was refusing to vacate. After he did vacate, I decided, as a matter of expediency, to proceed with hearing the proceedings in the Expedition List.
As already mentioned, Mario initially made his own application for further provision. But this application was abandoned following the decision in the possession proceedings (cf J1 [75]). Harris is now the sole plaintiff in the family provision proceedings.
Harris claims increased provision from the estate beyond the one-fifth share provided to him in the deceased’s will. Harris’ case is that he moved to the Marshall Street property at his mother’s request, so that he could look after her. He alleges that over the following 20 years or so he took most of the burden of doing so. According to Harris, his mother recognised and greatly appreciated his efforts, and made promises to him over the years that he would continue to be able to live at the Marshall Street property after her death.
Originally Harris sought provision in the form of a life estate in the Marshall Street property. But at the February hearing in the possession proceedings his counsel recognised that it was not realistic to think that he would be able to live there (not least because, on his case, he had no money to pay for the property’s upkeep). He now seeks a Crisp order (see [202], [214] below) in his favour. The order sought would enable him to continue to live at the Marshall Street property, or alternative accommodation if that should become necessary, rent-free, for the rest of his life.
Some years before her death, the deceased had made a loan to a local real estate agent, Mr Jim Ronis. As at the date of her death, the amount outstanding, including interest, was $36,000. Andrew drew down $5,000 for funeral expenses. The remaining $31,000 was paid out to Harris, who collected it purportedly on Andrew’s behalf. What had happened to the $31,000 became an issue in the proceedings. The money, however, never found its way into the deceased’s estate. Andrew claimed that he was unaware at the time that Harris had obtained the money from Mr Ronis, and that Harris had kept it for himself. Harris claimed that he had indeed been acting on Andrew’s instructions in obtaining the money, and had accounted to him for it. On this view, the money must have been misappropriated by Andrew.
On Andrew’s case, the money was owing from Harris to the estate. Andrew made no formal claim on the estate’s behalf, but intimated that he proposed to deduct the amount from Harris’ share of the residue in due course. Mr Ronis and his son George, who actually made the payments to Andrew and Harris on Mr Ronis’ behalf, were called as witnesses.
The position was complicated by the fact that, the previous October, Harris had obtained two further repayments from Mr Ronis of $11,000, representing that the moneys were required for his mother. When the time came to repay the remainder of the loan the following year, Mr Ronis had forgotten about these payments. The total amount he actually paid out was therefore $11,000 more than was in fact owing. Again, there was a dispute about whether the payments had been accounted for.
Strictly speaking, if the monies were misappropriated by Harris, he would have acted without authority. The payments made by Mr Ronis to Harris would not have discharged the debt and Mr Ronis would remain liable for the debt, from the full $36,000 to the estate, apart from the $5,000 paid for funeral expenses. At the same time, Mr Ronis would have a claim for money he hadn’t received against Harris for $42,000.
The issue was a relatively minor one in the scheme of things but it seemed to me to be desirable for it to be formally determined, and Harris’ liability to repay, if any, adjudicated upon, if the issue was going to be decided in the proceedings anyways.
When these issues emerged at the hearing, it was agreed that the best course was for Andrew, as executor, to pursue a claim against Harris for the whole of the moneys which had been paid out, including the $11,000 overpayment, and account to Mr Ronis for that overpayment in the event that the claim succeeded. Through his counsel, Harris agreed that it was unnecessary for any formal cross-claim to be brought, or for Mr Ronis to be joined so as to pursue a claim in his own name for the overpayment. In his written final submissions, counsel for Harris attempted to resile from that agreement, but ultimately did not press this. It was agreed that if I found that Harris had appropriated the money to himself, I would enter judgment against him without the need for any formal process.

Summary and analysis of evidence

Chronology of key events

The deceased was born in Cyprus in December 1939. She and her husband George met and married in Cyprus. All of their five children were born there: Andrew, in August 1961; Mario, in November 1963; Maria, in December 1965; Theo, in September 1967; and Harris, in July 1969.
George migrated to Australia, arriving in Sydney in 1970. The deceased followed with their children in 1971.
The Marshall Street property was bought in 1974 in the names of George and the deceased as joint tenants. Both George and the deceased worked, the deceased as a factory worker.
The deceased had grown up speaking a Greek Cypriot dialect, which is quite distinct from the ordinary Greek spoken in Greece. She did not speak English or Greek and conversations with members of her family were conduct in Greek Cypriot.
As already stated, George died in 1998. His death was sudden and a terrible shock to the deceased.
By the time of George’s death, the loan which had been taken out to buy the Marshall Street property had been paid off and the deceased had retired from paid employment. The Marshall Street property passed by survivorship to the deceased. George died intestate and there is no evidence that there was anything of great value left in his estate.
As already noted, after George’s death the deceased lived with her daughter Maria for a period of time and rented the Marshall Street property out, before returning to live there with Harris in the early 2000s. The deceased and Harris shared the house for about 20 years until the deceased moved into a nursing home at Bankstown known as “Hixson Gardens”. She was later moved to a different nursing home at Yagoona, where she died in June 2023.
In his affidavit evidence, Harris placed the deceased’s move from Marshall Street to the first nursing home as having occurred “in or about 2022”. Nursing home records, however, establish that it took place in June 2021. The deceased was moved from Hixson Gardens to Yagoona in May 2022.
It seems that, following George’s death, Andrew, as the oldest son, took over most of the responsibility for assisting the deceased with financial matters. At some point, the deceased granted him a power of attorney (which I assume was an enduring one, as it appears to have been used by Andrew to allow him to manage the deceased’s affairs in connection with her admission to the nursing home).
One of the financial matters which comes into this judgment is a $20,000 loan which the deceased made to a real estate agent, Mr Jim Ronis. The loan was made in 2013; according to Andrew (who was aware of the arrangement) the money came from the deceased’s savings. Otherwise, the deceased appears to have had few assets apart from the Marshall Street property.
It seems that under the arrangements between the deceased and Mr Ronis, Mr Ronis was not required to make regular payments of interest or repayments of principal, although the deceased may have drawn on the loan from time to time to fund specific expenses which could not otherwise be met out of her own funds (which presumably were derived from her age pension). The loan remained outstanding as at the deceased’s death.
The deceased appears to have enjoyed good health until the mid-2000s, when she developed diabetes. She had a bout of cancer in 2012 from which she recovered.
According to Harris, the deceased’s diabetes led to other complications which included peripheral neuropathy, causing pain and numbness in her feet. This (and the development of osteoarthritis) limited her mobility and her eyesight was affected. She also suffered from gout.
The evidence does not reveal how quickly the deceased developed these other health problems after she was first diagnosed with diabetes. In his affidavit evidence, Harris identified 2015 as the approximate date when her health began to go seriously downhill. In cross-examination, however, he asserted that caring for the deceased had already been a full-time responsibility before that.
Later in life, the deceased also experienced a decline in her cognitive functions. She became forgetful, and, lacking consciousness of her own failing powers, would become defiant or angry when her forgetfulness was mentioned to her.
Again, the evidence does not identify specifically when the deceased’s cognitive decline began or how rapidly it progressed, but documentary evidence from the second half of 2021, when she was a resident of Hixson Gardens, shows that she had been diagnosed with Lewy body dementia. The deceased’s condition seems to have further worsened after she suffered a stroke in April 2022.
Harris continued to occupy the Marshall Street property rent-free after his mother went into the nursing home. Initially, this was with the agreement of his siblings, as a temporary arrangement pending the sale of the property. But it continued after the deceased’s death in June 2023. Eventually Andrew as executor asked Harris to leave so that the property could be sold. He refused to do so, resulting in the possession proceedings to which I have referred.
By the time the order for possession was made in the possession proceedings, the estate had run out of cash and the rates and utility charges for the property were substantially in arrears. Claims might have been made in the possession proceedings against Harris for compensation for the rental value of the property for the period after he was asked to leave, and for reimbursement for outgoings and utility charges for that period, but no such claim was made.
As already mentioned, I later made orders in these proceedings requiring Harris to vacate the property. Those orders obliged Harris to remove “all goods and chattels” from the property when he vacated. When he eventually did so, Andrew complained that the house had not been properly cleared out and the order had not been complied with.
Harris’ response was that the order did not oblige him to remove items which did not belong to him. It seems however that some of the chattels left behind did belong to him and had been left behind because he considered it impracticable to remove them. In the end, as a matter of expediency, I discharged the order, and Andrew completed the clearing out of the property at the estate’s expense.

Deceased’s estate

The inventory of property which accompanied the application for probate of the deceased’s will identified her assets as having been the Marshall Street property and $10,000 in cash at bank. The bank account monies appear to have been applied in paying estate expenses. By November last year, if not before, the monies had been exhausted. By February this year, Maria was owed $8,000 for probate costs and Andrew was owed $5,000 for the deceased’s headstone and other estate expenses. There were outstanding council rates of $5,000 and a further $2,000 in unpaid utility charges.
By the end of the hearing, counsel for the parties were agreed, at least in broad terms, about the financial position of the deceased’s estate. The primary asset in the deceased’s estate was the Marshall Street property, which is the subject of a contract for sale for $1.3 million. Estimated expenses of the estate are:

Property sale costs	$32,000
Unpaid testamentary and estate costs	$29,000
Legal costs of possession proceedings (less recovery from costs order against Harris)	$79,000 ($54,000)
Costs of obtaining vacant possession (including rubbish removal)	$24,000
Legal costs of family provision proceedings (to date)	$226,000
Subtotal	$336,000

On these figures, the net value of the estate is $964,000. The figures do not include potential further recoveries from Harris, namely the Ronis loan monies ($32,000) and any costs which might be awarded against Harris in these proceedings. Nor do they include the potential further liability for any costs which might be awarded in Harris’ favour in the proceedings.

Witnesses

Harris gave evidence in support of his claim and was cross-examined. His reliability as a witness was challenged and I will return to this question below.
Harris’ brother Mario and Mario’s son George also gave evidence to support some parts of Harris’ account. Each of them was cross-examined also.
A real estate agent, Mr Adrian Staltari, gave evidence about rental values in Bankstown in support of Harris’ case. Mr Staltari was also briefly cross-examined but his evidence was not controversial, so far as it went.
Andrew was the principal witness in the defence case. He was cross-examined, including as to credit, and I will address the challenge made by counsel for Harris on this issue below.
Evidence was also given by Harris’ and Andrew’s sister, Maria, by Andrew’s son George, and by Mr Ronis and his son George. None of these witnesses was required for cross-examination.

In all, nine affidavits were read from Harris. As will be seen, there were some shifts in his evidence which I will discuss below. In order to put that discussion in context, I will briefly summarise the way in which his affidavit evidence developed.

The first affidavit from Harris was made in January last year. It was a lengthy one, following the conventional form of an affidavit in support of an application for further provision under the Act. Each of the factors identified in s 59 was addressed under a separate heading.

Harris’ second affidavit, which was made in April last year, replied to some of the points made in affidavits from Andrew which had been filed in the meantime.

In late January this year, a further major affidavit was filed from Harris (the fourth). This affidavit restated and added to what Harris had said in his original affidavit in support of the application. It was accompanied by the supporting affidavits of Mario and Mario’s son George.

On 3 February, three further affidavits from Harris were filed. One (the fifth) supplemented Harris’ evidence about the conversation which he had with his mother at Hixson Gardens in March 2022, which was later to assume particular importance in his case (see [106] below). Another affidavit, the sixth, replied to further affidavits which had been filed in January from Andrew, Andrew’s son George, and Maria.

Harris’ final affidavit, the ninth, was made on 5 May, the day before the hearing began. This affidavit responded to the affidavits from the Ronises and to further affidavits from Andrew which had been filed since February.

Harris’ personal circumstances

Harris completed year 12 at high school, and obtained a trade qualification as a tiler. He lived at home with his parents until he married. After marriage, he and his wife lived together in a property they bought at Yagoona.
The marriage was a brief one, and did not result in any children. According to Harris it lasted from “in or about 1996” to “in or about 1997”. As a result of the marriage breakup, there was a mortgagee sale of the Yagoona property. According to Harris there was $15,000 left over, which he shared with his ex-wife.
At the end of the marriage, Harris would have been about 28 years old. Harris deposed that, at some point after the failure of his marriage and the death of his father, he moved to “the City”. This was in about 2000 or 2001. I assume that the accommodation was rented. Harris seems to have lived there until he moved to Marshall Street with his mother.
In his first affidavit, Harris deposed that he moved in with his mother “in or about 2001”. In response, Andrew deposed that the deceased lived with her daughter Maria at Maria’s home in Minchinbury from 1998 to 2003. But in reply, Harris insisted that this was incorrect. He claimed to recall that he was living with his mother on 11 September 2001, the date of the September 11 attacks in the United States.
Later an affidavit was put on from Maria herself. She deposed that the deceased lived with her from 1998 until 2003. And when the deceased moved out, she moved to a rental property in Bankstown, because the Marshall Street property was then tenanted. She only moved to Marshall Street when the lease ended. As already mentioned, Maria was not required for cross-examination.
Harris is a gambler. He said in his oral evidence that he had been gambling since roughly 1990-1991. He would give up for several months at a time but would give up again. His gambling seems to have focussed, at least in more recent times, betting on horse races and sporting events.
Harris’ gambling accounts with TAB for the period from June 2021 to October 2024 were in evidence. Those accounts record periods of intense gambling activity, sometimes involving bets of thousands of dollars a week. Some of the gambling was undertaken at the betting shop and some of it online at home. On some days (and nights) Harris appears, from the records, to have been gambling continuously for twelve hours or more. He confirmed in his evidence that from time to time he would engage in gambling sessions of that type.
There seems little doubt that Harris’ gambling is a problem for him. According to Harris, he has taken breaks from gambling from time to time, which have sometimes lasted for a few months, but then he would go back to gambling again. In cross-examination he identified that took these breaks because he “lost all his money and got depressed”.
After the failure of Harris’ marriage, there is no evidence of Harris having been in any long-term relationship except for one with a woman named Vanessa Kerry. According to Harris, they were together from about 2006 to about 2010. She and Harris had a son, Alexander, who was born in 2007 or thereabouts. Alexander is autistic. Vanessa retained custody of him. It seems that in the past there was a shared parenting arrangement where Harris looked after Alexander for between one to four days a week. The current position on parenting arrangements is unclear. Vanessa and Alexander are currently living at Caringbah.
There is virtually no evidence about Harris’ work history. From 2001 at the latest he was on unemployment benefits. He said in his oral evidence that he was complying with the conditions which required him to seek work, but was unable to find it. Later he received a carer’s pension for looking after his mother. According to Harris, this began in about 2013.
There was some evidence that Harris continued to work on occasion as a tiler. Andrew’s son George deposed to paying him $10,000 to undertake tiling work in a property owned by him in 2019. This was denied by Harris.
In cross-examination, Harris was shown messages about the work for George which were said to have passed between him and Andrew’s wife Maria. He did not admit their accuracy. Counsel attempted to take this further by asking Harris to produce his phone, but the attempt ended inconclusively when Harris said he no longer had the phone. He said that in fact he had had a large number of different phones which he could not put his hands on.
There was also cross-examination of Harris on credits shown in his bank statements for sums of several thousand dollars from TAB, representing gambling winnings. Counsel suggested that these transactions were Harris’ “income”, and that in effect he was a professional gambler. This was not admitted by Harris and again the cross-examination proved inconclusive.
As already noted, Harris continued to live at the Marshall Street property after his mother was admitted to the nursing home. He went back onto unemployment benefits.
In cross-examination, counsel put to Harris that his failure to find paid employment while he was living at Marshall Street was a lifestyle choice. Harris denied this. He said that he simply could not find work.
Harris deposed that the decision for his mother to go into a nursing home was made at a family meeting attended by each of the siblings as well as Andrew’s son George and Maria’s husband Peter. According to Harris, neither he nor Mario wanted the deceased to go into a nursing home, but Andrew used the fact that he had a power of attorney to push it through.
Harris deposed that at the meeting there was then a discussion about selling the Marshall Street property. Both Mario and Theo proposed that Harris should be allowed to stay for a period of time. Theo proposed two years, but Mario said the period should be twelve months. Harris’ understanding was that he would be allowed to stay for that period unless a good price could be obtained for the house in the meantime.
Andrew rejected the idea that he prematurely forced his mother into a nursing home. He said that there was no alternative because her doctors had advised that she required 24-hour care. The issue was not addressed in cross-examination.
According to Harris, he was diagnosed with stage-3 bowel cancer in March 2023. He has undergone chemotherapy. There is, however, no medical evidence to confirm this, or to indicate his prognosis. He also deposed in his affidavit that he was suffering from insomnia, cysts on his liver and depression, but again there is no medical evidence to confirm these diagnoses.
Harris has no assets to speak of. He now receives a disability pension.
Harris says that, after surrendering possession of the Marshall Street property, he spent some time living in his car. Later the car was towed away, and he spent some further time living in a room above his nephew’s (presumably George, Mario’s son) restaurant. He was apparently also told by Ms Kerry that he could stay with her for a day “here and there”. What has happened to Harris’ car, or what his current living circumstances are, are unknown. He has applied for government housing but has been told that it might take years to be approved.

Relationship between Harris and the deceased

In his affidavits, Harris deposed that he had a very close relationship with the deceased. During his marriage, he would see the deceased every day. After his marriage broke up and he moved to the city, he would see her once a week. While they lived together, he was a constant presence in her life as well as helping around the house. After she moved to the nursing home, he would visit her every day.
Harris deposed that after he moved into the Marshall Street property, he performed all of the maintenance on the property including the front and back yards, as well as repairs. He deposed that he also undertook renovations for the property including renovations of the granny flat and renovating the bathroom, and installing two further bathrooms.
Andrew, however, in his affidavit deposed that the works on the “granny flat”, which was an extension of the property at the rear, was undertaken by George Snr before he died in 1998. Andrew also deposed that the deceased paid for any materials that were needed for maintenance work.
In reply, Harris accepted that his father had undertaken renovation and extension work, but maintained that he himself had undertaken the extension work at the back of the property. Harris acknowledged that the deceased did make “some payment for materials”. He went on in his affidavit to claim that he had made payments, but the form of the evidence made it inadmissible, and it was successfully objected to.
Harris never paid rent of board for his accommodation at Marshall Street. In his first affidavit Harris said nothing about making any contributions to household expenses or property outgoings. He also acknowledged that on three separate occasions his mother provided him with money towards the purchase of a car (although he suggested this was partly for her benefit as it allowed him to drive her around as well as using the car for himself).
In his fourth affidavit, Harris expanded on the assistance that he had provided to his mother. He said that the assistance included undertaking all of the household chores, including cleaning, laundry, grocery shopping, etc. In the same paragraph he said that he “bore the majority of” these chores.
Harris also deposed that he made financial contributions to household expenses “including” groceries, utilities and maintenance costs. He estimated that he spent at least $100 per week. He also deposed that he oversaw repairs and upkeep of the property, arranging tradesman and on occasion undertaking work himself.
In his first affidavit, Harris described himself as having moved in with his mother in 2001 to care for her. From about 2013, he was registered by Centrelink as her carer and drew a carer’s pension. This continued until she went into the nursing home. Later in the affidavit Harris described himself as caring full time for the deceased for the whole period that they lived together at Marshall Street.
In his fourth affidavit Harris gave a more detailed description of his mother’s medical conditions and care needs. He described his mother as having “progressively” suffered from health problems which affected her independence and quality of life and that she became “increasingly” reliant on him for support.
Harris deposed:

By the end of 2015, caring for my mother was a fulltime responsibility. I made myself available around the clock to attend to her needs, which were significant and unpredictable. A typical day involved:
a. Assisting my mother to get out of bed, toilet, shower, dress and groom herself;
b. Preparing all her meals and snacks according to her dietary needs;
c. Helping her take her many prescription medications at the correct times;
d. Performing blood sugar checks and insulin Injections;
e. Regularly repositioning her to prevent pressure areas and muscle stiffness;
f. Encouraging her to do gentle exercises to maintain strength and mobility;
g. Supervising her during mobilisation with her walking aides;
h. Promptly attending to any toileting accidents and changing soiled clothes or bedding:
i. Providing emotional support and reassurance when she felt anxious, confused or upset;
j. Organising social visits and outings to prevent isolation and boredom;
k. Accompanying her to all GP, specialist and allied health appointments;
I. Advocating on her behalf to health care providers;
m. Arranging home modifications and equipment to make her environment safer and more accessible;
n. Liaising with community services such as aged care assessors and in-home nursing care;
o. Performing all household chores and errands: and
p. Making decisions on her behalf when her decision-making capacity was affected.

Harris was cross-examined on the extent to which he really provided care to the deceased:

Q. ... when you moved into the Marshall Street property … she [the deceased] was in her early sixties, wasn't she?
A. That's correct.
Q. She was quite healthy and independent at the time, wasn't she?
…
A. She couldn't speak English, she couldn't drive, she couldn't do shopping because my dad used to do everything for her.
Q. But she was quite healthy?
A. She was healthy, yes.
Q. She didn't need caring for in a medical sense, did she?
A. No.
…
Q. Your evidence says, "By the end of 2015 caring for my mother was a full-time responsibility"?
A. That's correct.
Q. So, I'm putting to you that before 2015 it was not a full-time responsibility?
A. I still think it was.

Andrew did not agree that Harris engaged in the tasks he had enumerated in his affidavit. In his affidavit of 31 January 2025, Andrew deposed:

I often went over to my mother's house at 19 Marshall Street, Bankstown, often with my wife and children, including on special occasions such as birthdays and Christmas'.
From my observations and my knowledge of her medical issues and general health, my mother appeared to me to be healthy and independent for most of her life until about late 2022 when she went into a nursing home.
My mother did not require full-time care until she went into full time care in the home in or about late 2022.
From my observations of the Bankstown property on my visits there and through my conversations with my mother and Harris over the years, I believe that:
a) Harris did not live there in a full-time capacity from the time that he says that he moved in, in the early to mid 2000's;
b) Harris lived with my mother when he didn't have anywhere else to live;
c) From about September 2012, when Harris' son Alex was born, and for about 5 to 6 years from that date, Harris lived with Alex's mother Vanessa in a housing commission property in Chester Hill; and
d) There were other periods of time from the early to mid 2000's when Harris was not living in the Bankstown property when he was in another relationship.

My mother managed her own finances by attending on the bank with her passbook on her own, or with me until a debit card was issued.

In cross-examination, Andrew was asked about which responsibilities he was aware of Harris having, and he added:

Q. No, but you don't deny that Harris assisted your mother with certain things, in this paragraph?
A. Yes, certain things.
…
Q. You said a moment ago that the matters that are listed there in paragraph 28 were not all done by Harris?
A. No.
Q. What do you say that is listed there was not done by Harris when he was living with your mother?
A. Because he had nurses coming in.
…
A. They were looking after her.
Q. Yes, but he also undertook some of the tasks that are listed?
A. Yes, he was, when he was there.
…
A. Yeah, [he] wasn't there all the time.
…
A. When I used to go down, the times he was there he used to lock his door, because he had a door and he locked it from the other unit, like, in the house. So, he wasn't with mum all the time.
…
Q. When you were there did you see him doing any of those tasks [listed in Harris’ affidavit]?
A. No.
Q. None of them at all?
A. No, I saw mum cooking. She was having soups. She was putting soups in the water and boiling it.

Alleged promises to Harris by deceased

In his affidavits, Harris deposed that his mother had made frequent promises to him about being able to stay at Marshall Street. This evidence became more elaborate over time.
In his first affidavit, Harris deposed:

My mother had had many conversations with me since in or about 2000 where she would say to me in Cypriot Greek words to the following effect:
"Harris, I would be greatly assisted if you move into this house with me. You need a place to live and I am your mother who needs you here".
I would reply to the effect of:
"Mum, I will never let you down, I am your son and I will always be here for you and I will attend on you regularly”.

Later in the affidavit he deposed:

I would sometimes have conversations with my mother to the following effect:
"Mum, I have nothing in my life. I haven't been able to save and get a house, I don't know what my future will be it makes me scared."
My mother would always respond to me in Cypriot Greek with words with the following effect:
"Harris, this is your house, you will always have a roof over your head. Son, you have nothing to worry my house will be here while I am alive and here for you when I am gone".

Harris continued:

I never contemplated that my mother would not have made provision for me to continue living in her home as I always relied on her assuring me that I would always have a roof over my head in her home while I needed it. Upon learning of the contents of the Will I was surprised to that it did not reflect the assurances which my mother had given me.

In discussing his mother’s testamentary intentions, Harris also deposed:

I recall that, in or about 2015 to 2016, I was present with the deceased at the property. I recall that we had a conversation with words to the following effect in the Cypriot Greek language:
She said: "Your dad and I had a conversation just before he passed away. He said that I had to make sure that you are not left without a house to live in."

Harris deposed that he first became aware of the deceased’s 2012 will when he received a copy of it in January 2019. According to Andrew, all of the siblings were aware of the will at the time it was made. Harris, however, denied that this was so, at least in his case. He said he first learned of the will when his mother told him in December 2018 that she had been to sign a document with Mr Ronis. According to Harris, he surmised that the document might have been a will and rang Andrew to confirm this. In the following month, January 2019, Andrew provided him with a copy.
In his fourth affidavit, Harris returned to the circumstances in which he had moved in with his mother. He deposed:

My mother and I would have conversations about the significance of the house and her desire to stay in the house and live independently. I remember one particular conversation to the following effect:
She said: "I'd rather die in my own home than in some strange place without my things around me. Please, don't ever ask me to leave. It would break my heart."

I said:    “Don't worry, if you need me, I will be there for you and I will care for you."
She said:    "My dear boy," she said, hugging me tightly. "I don't know how to thank you. Having you here with me is the greatest gift. Together we'll keep the spirit of this family alive in the house your father got for us."
I said:    "You can count on me, Mum. I'll be by your side every step of the way. We'll face whatever challenges come together. I will look after you for as long as you need."
She said:          "With you here, you will look after me."
Following moving into the Bankstown property, I recall that the subject of rent or board was never discussed, however I do recall a conversation with my mother to the following effect:
She said:    "Harris, the care and support you are giving to me is worth so much to me. Don't worry about the fact that you are not working, I will support you because you are looking after me."
At the time, I recall being of the view that my move to look after the deceased as her carer would be a temporary solution, as I had applied for a Housing Commission property. Neither myself not any of my siblings anticipated I would still be there 23 years later.

Harris also deposed to representations which he claimed the deceased had made that he would be entitled to live in the Marshall Street property for the rest of his life. His evidence was:

One example of the above was in or about mid-2001, shortly after I moved back into the Property, my mother said to me:
"I want you to always feel this is your home too now. You'll have a place here with me for as long as you need it, even after I'm gone. I'll make sure of it. It is yours for life."
I thanked her and expressed my gratitude, saying how much I appreciated her support and generosity. She made statements to this effect on many occasions over the years we lived together and provided me with the understanding and belief that I would be entitled to reside In the Property for the remainder of my life.
I specifically recall a family gathering for my mother's 80th birthday in February 2018, which Andrew and other family members attended. In front of everyone, my mother said words to the effect of:
"I want you all to know that this house will always be Harris' home. He will live here for as long as he needs. It's the least I can do after everything he does for me."
I recall that my mother made similar statements in front of family members on other occasions, such as at Christmas celebrations and when her grandchildren visited the Property. She would often say things like:
"Harris takes such good care of me" and "Don't worry, this will always be his home too."
…
In the last few years of her life as her health seriously declined, my mother spoke to me privately on an almost daily basis about her wish for me to remain living at the Property after she was gone. She would say words to the effect of:
"I want you to stay living here Harris. This is your home now."
"You've given up so much to look after me, I know that. So the house is yours."
"I've told Andrew and the others that you are to stay here. They know it's my wish."
"I've done everything to make sure you'll be secure here after I'm gone."
"Nobody will be kicking you out Harris. Your mother is making certain of that."

In the affidavit Harris further deposed that in reliance upon on his mother’s alleged representations that he would always “have the security of” living at Marshall Street, he had acted to his detriment. He identified the detriment as having included: spending “over 23 years” of being his mother’s full time live in carer, “to the exclusion of other paid employment and opportunities to earn income and save money”; refraining from taking steps to acquire his own home; contributing his pension and savings to the household; performing “extensive unpaid domestic labour” on the property; and foregoing personal relationships and opportunities as a result.
Harris went on to say that among the personal opportunities he had forgone had been an opportunity to pursue marriage and a family of his own with Vanessa. He deposed that Vanessa asked him to commit to a relationship with her, but he felt unable to do so because of his responsibilities as his mother’s carer.
Mario also gave evidence of statements made by the deceased about Harris living at Marshall Street. In an affidavit made in January last year, at the same time as Harris’ first affidavit, Mario deposed:

… I can recall that there were previous occasions where my mother discussed her intentions with regards to Harris staying in the Bankstown property.
For example, I can recall that my mother would say words to the effect of:
"Harris is going to stay in the house''
"Harris is not going to be out on the street, don't let him get kicked out"
"He will stay in the house as long as he needs to"
"He looks after me, he gets to stay here."

I recall that she would say words to the above effect once every couple of months following in or about 2001 until her passing, being times when I would visit my mother at either the Bankstown property or when she was in the care facility.
I would then observe my mother to begin to cry when she would say words to the above. … These would be statements that she would make during conversations, including in conversations when Harris was present with me, such as Christmas celebrations and birthdays.

Mario’s son George also gave evidence on this subject. In an affidavit made in January this year, at the same time as Harris’ fourth affidavit, George deposed:

I can recall that I was present at a number of events, including Christmas Day and birthdays for various family members, which would often be hosted at the property at 19 Marshall Street, Bankstown NSW 2200 (the Property). From in or about 2015, I can recall that I would overhear my grandmother say words to the effect of "This is Harris' house.”
One specific example that I can recall was in or about 2018, at a birthday party for my grandmother. I recall that I was present in the room with my grandmother when she said words to the following effect:
She said: "Harris will always be able to stay here, it is his house to stay in because he does so much for me. It's the least I can do."

I recall that I would overhear other comments following 2015 to the effect of:
"Harris does so much for me."
"Harris takes good care of me."
"All the others have money, Harris doesn't have anything so I want him to have the house."
"All the others have plenty, but Harris doesn't have anything."

I understood the reference to 'all the others' as being my aunts and uncles, being her children.
"Harris will get to stay here as long as he wants because of what he does for me."

Maria and Andrew, on the other hand, denied that they ever heard any such promises being made. In her affidavit made in response to Harris, Maria deposed:

I have never heard my mother say that Harris is to have her home.

In his affidavit in response to Harris, Andrew deposed:

On 22 December 2018 I went to [Marshall Street] to celebrate my late mother's 79th birthday. I went with my wife and my son George with his wife and 3 children. We brought a cake. Harris was also there as he lived at the property at that time.
…
On the occasion of her 79th birthday, I did not hear my mother say the words deposed to [by Harris], or words to that effect.
On 22 December 2019 I went to 19 Marshall Street, Bankstown to celebrate my late mother's 80th birthday. I went with my wife and my daughter Christy and my future son-in-law Domenic. We brought a cake. I can't recall whether Harris was there or not at this time.
…
There was no other "family gathering" to celebrate my late mother's 80th birthday that I am aware of in February 2018 or at all.
On the occasion of her 80th birthday, I did not hear my mother say the words deposed to [by Harris], or words to that effect.
I have never heard my late mother say the words that Harris deposes to … or words to that effect.
I have never heard my late mother say that "this house will always be Harris' home" or "this will always be his home" when speaking about [Marshall Street].

In cross-examination, Harris was asked about his initial decision to move in with his mother, and his affidavit account of his conversations with her at the time:

Q. You moved into Marshall Street in 2001 because you were unemployed and needed somewhere to stay and to care for your mother. You didn’t do it as a result of any promise that your mother made to you?
A. I did it because my mum rang me up, she started crying that my sister kicked her out. And I said, “Look, I’m moving out of the city. We’re moving together”. And that when we moved into Shenton Avenue in Bankstown. And then from there when they moved out of her house, we- she wanted to go live in her house so we went and lived in her house.
Q. Your mother didn’t promise to leave the house in her will when you moved in?
A. At that stage, no. She never mentioned anything like that.
…
A. It’s when she got older.

Harris was not specifically asked about later promises by the deceased or statements to the family about him staying at Marshall Street. But later in the cross-examination, he was asked about what effect finding out about the terms of his mother’s 2012 will had had on him. He gave the following evidence:

Q. Once you'd read the contents of your late mother's will … did you change anything about the course of your life after having read her will in 2019?
A. Not necessarily.
Q. You continued to live at 19 Marshall Street?
A. That's correct.
Q. You continued to gamble?
A. That's correct.
Q. You continued your unemployment?
A. That's correct.

Counsel did specifically ask Mario about the statements from his mother about Harris staying at Marshall Street which appeared in his affidavit:

Q. When did she say those to you?
A. When did she say it to me, every time I used to go to the nursing home with her, she used to say "Don't leave Harris without a house, all right." And she was crying.
…
Q. She said those statements to you in the nursing home, did she?
A. Yes.
Q. Nowhere in those statements does it say that she would leave the house to Harris in her will, it doesn't say that there, does it?
A. No.
…
Q. It doesn't say that there, does it, that Harris gets the house when she dies? I'm happy to go through the statements one at a time.
…
WITNESS: No, it doesn't.

George too was asked about the statements by the deceased recounted in his affidavit:

Q. … in none of those statements does it say that I'm going to leave Harris the house in my will, does it?
A. No, it doesn't.
Q. In none of those statements does it say "I promised to leave Harris the house when I die", does it?
A. No, it doesn't.
Q. It doesn't say that in these statements that you give your sworn evidence in relation to because you didn't hear her say that did you?
A. Well, it pretty much says Harris will always stay here. So that implies when she dies, it does say in them particular words.
Q. My question was that you didn't hear her--
A. She didn’t say that in the particular words.
Q. --say the words that I said? Yes. Because--
A. Yes. She didn’t say that in the particular words that you said.
…

When Andrew gave evidence he was cross-examined about the two birthday gatherings which had been the subject of Harris’ evidence and to which Andrew had responded in his affidavit. He maintained that he did not hear his mother make the statements alleged by Harris, but acknowledged (inevitably) that such statements might have been made when he was out of earshot. Counsel did not otherwise challenge his affidavit testimony on the subject.

March 2022 conversation at Hixson Gardens

A conversation between Harris and his mother which took place at Hickson Gardens on 11 March 2022 assumed some importance in the case. In the end, it emerged that the conversation was recorded by Harris. In January this year the recording was given to an interpreter, Ms Francie Wilson, to produce an English version. Ms Wilson was not cross-examined.
Ms Wilson is a Greek interpreter but not, it seems, an expert in the Greek Cypriot dialect. She explained:

The Cypriot dialect is a distinct variant of Greek with unique linguistic features that distinguish it from standard Greek. As a specialist in both standard Greek and the regional dialects, I possess some of the necessary expertise to comprehend and translate nuances that may be incomprehensible to standard Greek speakers. … Where I have not been able to understand the conversation, on the basis of aspects of a heavy rural dialect, I have stated as such in my transcription.

Ms Wilson’s transcript of the recording was:

MOTHER: AII ... No one's. [indecipherable, overlapping speech]
SON: But the house - but the house is in all names [dialectical phrase, possible meaning: 'in all names' from context].
M: Hmm?
S: The house is in all –
M: - No. It's no one's. It's yours. [Dialectical phrase. Possible meaning: 'It's yours' from context. Literal meaning: 'It's near to you]
S: No.
M: Oy ...
S: Maria is waiting to get ... [incomplete sentence]. It is not ... [indecipherable; unclear speech fading]
M: Eh?
She will not get anything.
No one comes to see me anymore. No one comes to see me now. Maria used to come [unclear speech; possible meaning: 'come' from context] sometimes. Now ... [speech unclear]
S: Did you ever write this ... [unclear; speech overlap]
M: Marla has money, they all have money.
S: They all have money.
M: And Andros has a lot of money. And [indecipherable] wife makes a lot of money-
S: - Yes-
M: - Do you know how much?
S: I know. I only get ... [indecipherable and overlapping speech]
M: Eh, well... [overlapping speech]
The money is all yours.
I'm not giving them anything.
The house is yours and everything.
You [need to] control Maria.
The house's title deed ls not written to anyone. [possible dialectical phrasing of 'title deed]
S: The title deed Is in everyone's name, Ma.
M: I will ... [indecipherable; unclear speech] ... to you.
As long as I remain. [possible meaning: 'live' from context]
If you see that I…oh, I die…
I could give it to you. [dialectical phrase, possible meaning: 'give it' from context. Literal translation: 'put it on you']
Don't give it to Evangelia, [dialectical phrase, possible meaning: 'give it' from context] don't do anything.
S: But Andros took you and you wrote it to all. [dialectical phrase, possible meaning: 'you wrote it in all names' from context]
M: What?
S: You wrote the house to all.
M: - [indecipherable] - Eh, well, now I am alone.
Eh, alone ... [dialectical phrase, indecipherable] ... house.
But now, no one comes to see me…
[unclear phrase, indecipherable]
S: Don't worry. Whatever is meant to happen, will happen.
M: You come see me. I want you to come see me.
S: Eh, I come see you whenever I can, Ma. I come see you whenever I can.
M: Yes, you come see me. You come see me. [dialectical phrase].

A year before, in his first affidavit, Harris had deposed to the following version of the conversation:

I recall that as recently as the 11 March 2022, I was present with the deceased at the Hickson Gardens Aged Care Facility in Bankstown. The deceased was a resident there at the facility at the time. I recall that the deceased and I had a conversation with words to the following effect in the Cypriot Greek language:
She said:    "All of your siblings have money. I am going to leave the house to you. You have looked after me and I want you to continue to look after me. Your siblings don't come to visit me very much. As I said before Harris, my home is your home. You have made great sacrifices for me and I will never forget your love as a son"
I felt very emotional when my mother said that to me and I can recall it distinctly.
I said:    "What I did for you mum, I did as your son and not for your house. The house should be for all of us."
...
I said:    "As long as I can continue to live there mum, I don't want the wealth of the house but living there as long as I can and as long as I need to would help me regain my future."
She said:    "No, the house is yours. You will take the house that is what I want you have been beside me when I needed it and I will be beside you, even when I am gone."

In his fourth affidavit, made at about the same time as Ms Wilson produced her transcript of the recording, Harris gave a more comprehensive account of the conversation. He deposed:

I recall a conversation with my mother that occurred in approximately 2021, when her health was deteriorating and she more often discussed her estate planning. Such conversation was with words to the following effect:
I said:    "But Mum, the house is under everyone's name in the will."
She said:   “No, I’m not giving it to anyone else. Its all for you.”
I said:   “What about Maria? She’s expecting to inherit a share”.
She said:    “No. no one’s going to get anything. None of them come near me like you do. Maria visits sometimes but that’s it.”
I said:   “But you’ve written a will saying that we all inherit equally.”
She said:   “Maria has her own money, they all have money. And Andrew has a lot, with his wife working and earning a good salary.”
I said:            “I’m the only one who doesn’t have an income.”
She said:   "The money is all yours. The house is yours too, everything. I'm not giving them anything. As long as you save your money. The house isn't going to anyone else in the will."
I said:   “But it's written that you've divided it between all of us."
She said:   "I'm going to change the will to leave everything to you. As long as I'm alive, I can update it. If I'm on my deathbed, I'll make sure it's all in your name. I won't even leave it to my sister."
I said:   “But Andrew took you to make a will that included everyone.”
She said:    “What did I put in that will?”
I said:   “You-“
She said:   “but now I’m by myself. I put the house in all your names but no one comes to see me. They just visit briefly and leave. You are here.”
I said:   “Don’t worry about it Mum. We’ll sort it out.”
She said:   “You’re the only one who’s always close by to help me.”

In cross-examination, Harris was asked about the statement he attributed to himself, in his January 2024 version of the conversation, that the Marshall Street property should be “for all of us” (the deceased’s children). He gave the following evidence:

Q. … You said that to your deceased mother in March 2022.
A. That's correct.
Q. In or about the time of the conversation that you have given other evidence about recording in an audio file?
A. That's correct.
Q. At that time, you said to your mother "The house should be for all of us."
A. I said, I said to her that the - she wrote a will and put it on all of us, that's what Andrew claimed.
…
A. I don’t, I don’t remember saying the house is for all of us.
Q. You’ve written it down here in your sworn evidence before the Court which your barrister, prior to me cross-examining you, asked whether there were any changes that you wish to make and you said no, and I reminded you about the importance of telling the truth.
A. Where does it say that I said that?
[Harris was shown the passage in his affidavit]
Q. Did you say that to your mother?
A. I possibly could of, yes.
Q. Are you telling the truth?
A. Yes.
Q. Is that your position now?
A. No.
Q. Something changed after March 2022, did it?
A. Yes.

Later in the cross-examination, Harris was asked about the version of the conversation in this year’s affidavit and about Ms Wilson’s transcript. In his affidavit, Harris had the deceased saying, after reference to the existing will, “I’m going to change the will to leave everything to you”. He was cross-examined about the equivalent passage in Ms Wilson’s transcript ([108] above). Counsel put to him that the passage ended with his mother saying “I could give to you”. He gave the following evidence:

A. Yes. She said she was going to change it.
Q. Well, she doesn’t say that here, does she?
A. In the recording she does.
Q. But this is an expert translation of the recording and nowhere here does it say she will change it.

A. Interpreter must have got it wrong because she did say, “I’ll put it under your name”.

Ronis loan repayment

It was originally agreed between Mr Ronis and the deceased that the interest rate would be 7% per annum. It seems that the loan was treated as one at call and no regular loan repayments, or interest payments, were made.
Mr Ronis deposed that in October and November 2022 he was approached by Harris who asked for money by way of repayment. In each case Harris explained the request by saying that his mother needed the money. Mr Ronis made two cash payments, one for $1,000 and one for $10,000. In each case Harris signed a receipt purportedly on his mother’s behalf.
At the time the deceased died in June 2023 Mr Ronis was overseas and his business affairs were being looked after by his son George. A few weeks after the deceased’s death, Andrew called George and asked for him to make some money available from the loan moneys to pay for funeral expenses. A few days later George transferred $5,235 to Andrew.
About two weeks later, on 10 July, Harris visited George at the Ronis Real Estate office and asked for the rest of the loan moneys to be paid out. George calculated the amount of interest from the inception of the loan as being about $16,000. Five days later, on 15 July, he paid Harris the sum of $31,554 in cash. This took into account the sum of $5,325 paid to Andrew a few weeks before. But George was unaware of the payments to Harris the previous year and as a result there was an overpayment of $11,000.
Harris first addressed this issue in an affidavit made on 3 February this year, after it had been raised by Andrew in one of his affidavits. Harris did not deny receiving the three cash payments totalling $42,554 from the Ronises. But he denied misappropriating those monies.
Harris’ explanation for the first payment was that he wished to borrow $1,000 from Andrew and Andrew referred him to Mr Ronis to get the money. The second payment of $10,000 was money which Andrew had requested for himself. Harris said that he collected the money and took it to Marshall Street where it was collected soon after by Andrew. Similarly, he deposed that he collected the $31,554 in July the following year at Andrew’s request and the money was soon after collected from him by Andrew.
The Ronises’ affidavits were then filed and Harris responded to them in a further affidavit made on 2 May. He denied Mr Ronis’ version of the conversation in November 2022 and George Ronis’ version of the conversation in July 2023.
Harris also gave a different explanation for the $1,000 which he collected in October 2022. He deposed:

… After I attended the office of Jim Ronis, I agree that I collected the money and then returned to the Deceased. The reason that I wanted to get the money was to attend to various maintenance works and upkeep for the Property. This was based on a conversation that I had with my mother, to the following effect:
I said: “There are some works that we need to do around house”.
She said: “Go see Andrew to see if he can get the money”.
After I collected the $1,000 from Jim Ronis, I returned to my mother to give her the money that I had collected, to her then responding to me to the effect of "use the money to pay the bills and fix things up." I then attended to using the money to pay for the upkeep and maintenance of the Property.

Harris was cross-examined on this issue but adhered to his evidence.
Andrew denied that he ever asked Harris to collect any money from Mr Ronis. He maintained that denial in cross-examination.

Andrew’s personal circumstances

Andrew put forward his own circumstances as a ground for resisting Harris’ application, at least so far as it might affect the provision made for him in the will.
Andrew’s main work has been with security firms handling cash. He described himself as starting as a “coin processor”. He began this work in 1997 and continued until 2003 when he opened a takeaway food store with his brother-in-law. The business was not successful and in 2005 Andrew resumed work as a coin room supervisor on a part-time basis.
Eventually the business failed. Andrew and his wife Maria defaulted on their home loan as a result and were both bankrupted in 2008. They lost their home and since then they have lived with their son George. They do not pay rent although Maria occasionally makes payments towards household bills and utilities.
Andrew continued to work as a coin room supervisor through until 2013 when he gave that employment up again and spent two years working in a business being operated by Maria. In 2015 he returned to security work and worked as a casual coin processor. This continued until he was hospitalised in 2018 with an infection in his leg. The infection led to major surgery on his leg which resulted in him spending nine months in hospital and being off work for about two years.
Andrew deposed that he resumed casual work as a coin processor in about 2020 but ceased work in January last year when he was hospitalised for treatment on an ulcer on his right foot. Again this resulted in a major operation and a significant period of convalescence.
Andrew deposed that he has type-2 diabetes as well as ulcerated feet. He also suffers from pins and needles in his feet which prevent him from sleeping. He has had special shoes made to accommodate the problems with his legs and feet. His work as a coin processor involved him having to stand all day, and he considered it unlikely that he could undertake this work in future.
Andrew deposed that he owned a car worth $35,000 and had $3,000 in his bank account (in addition, he deposed that he was owed $5,000 for testamentary expenses from the deceased’s estate). He has superannuation of $16,000 and no other assets of any significance.
Andrew’s wife Maria is about five years younger than he is. According to Andrew’s affidavit she was working as a sales representative on commission, earning $3,500 per week after tax. She had a car worth $85,000 but owed $44,000 on it. She had $10,000 in her bank account and was owed $8,000 from the deceased’s estate. Andrew deposed that he believed she had $24,000 in superannuation but owned no property or other assets of significance.
At the time of the affidavit, the two of them were effectively living on her earnings.

Cost of accommodation for Harris

There was some evidence before me of the cost of providing accommodation for Harris in the future. The report relevantly put the median cost to purchase a one to two bedroom apartment in Bankstown at $539,750 and the rental cost for such a unit as $750 per week.
Harris also deposed in his final affidavit to the results of enquiries he had made as at early May this year:

To date, despite further attempts to obtain social housing, I have not received any further update or contact regarding my application, despite my circumstances. Additionally, I have not received any responses from any real estate agencies as to places that I can rent that are within my budget.
…
I have also attended to making enquiries on the effect of lump sum payments being received as to any application for social housing, however I have not yet heard back from the relevant authority as to how this would impact any application, nor the status of my application generally at this stage.
… searches I have caused to be performed of rental premises in the Bankstown and surrounding areas … have returned rental prices between $330.00 to per week to $550.00 per week, which is currently the limit that I believe I can afford based on my current disability pension payment each fortnight.
If I am to secure alternate rental accommodation, I would anticipate that such would cost an average of $440.00 per week, based on the above figures. If I was to make payment of this for the next fifteen years, I would be required to make payment of $343,200.00. The absence of any rental history for a substantial period of time prior to my living with the deceased has made it difficult for me to obtain any rental properties within my price range.

Harris was cross-examined about why he asserted that a property in Bankstown was necessary:

Q. You don’t need to live in Bankstown at all, do you?
A. No.
Q. For example, if you wanted to live in the greater Bankstown area for whatever reason you could live a couple of stops on the train west or east, say at Yagoona, Birrong, Wiley Park, Lakemba or Punchbowl, could you, just as easily?
A. Yes.
Q. It would be just as suitable for you to live in any one of those suburbs, wouldn’t it?
...
A. No.
Q. Why not?
A. It’s closer to my son.
Q. Your son lives with your ex-partner Vanessa, is that correct?
A. That’s correct.
…
Q. If Vanessa lives in Caringbah, then Bankstown is no closer to Caringbah than Yagoona, Birrong, Punchbowl or Wiley Park, is it?
A. I’m not sure.
...
HIS HONOUR
Q. After what counsel put to you, do you still maintain that you’ve got to live at Bankstown?
A. Well, I grew up in Bankstown so I just feel it’s safer.
Q. Has it got anything to do with seeing your son?
A. It does.
…
Q. How would living in Bankstown help you to see your son … compared with any of the suburbs that counsel has mentioned?
A. … it wouldn’t, your Honour.

Counsel for Andrew also took Harris to some of the property search results annexed to his affidavit. The following cross-examination ensued:

Q. … you agree with me don't you that there are suitable properties available for you to rent now for less than $400 a week?
A. I don’t know, I didn't find any without a bond, you need to put a bond down.
Q. I've just taken you to three properties that you have said in your evidence are suitable for you. Two of them rent for 330 a week, one of them rents for 350 a week, I'm asking you whether you agree with me that there are suitable properties for you to rent under $400 a week?
A. Well not that I can afford it but when I got desperate I--
…
Q. Do you agree with me that there are suitable properties for you available to rent now for less than $400 a week?
A. Yes.

Conclusions on disputed factual issues

When the deceased and Harris moved to the Marshall Street property: Initially, counsel for Harris invited me to accept his evidence that he and the deceased moved to the Marshall Street property in 2001. But he eventually accepted that, not having cross-examined Maria on her contrary evidence (or Andrew for that matter), it was not open to him to ask me to reject her testimony that the move occurred in 2003.
Of itself, this is not an issue of any great significance in resolving Harris’ claim. And a mistake of two years would not usually be surprising. But Harris made a special point of insisting that he could remember that the move happened in 2001. Accepting Maria’s version of events necessarily means rejecting the affirmative evidence from Harris on this question. Even if his evidence was not consciously false, the fact that Harris got this wrong says little for his reliability as a witness.
Tiling work done for George: The same comment applies to the conflict of evidence between Andrew’s son George and Harris concerning the tiling work. Counsel not having cross-examined George, I have no alternative but to accept his evidence on this question.
Again, this also means that I must reject Harris’ denial. It seems unlikely to have been the sort of thing which Harris could have forgotten about. The outcome is at best unfavourable for his reliability as a witness.
Repayments of Ronis loan: The resolution of this factual issue is a straight question of resolving the conflict between Harris and Andrew. I prefer Andrew’s evidence on this point, for the following reasons.

The Ronises were not required for cross-examination. I must therefore accept their versions of the conversations with Harris in October/November 2022 and July 2023.

It is I think significant that Harris’ first explanation for the $1,000 which he received in October 2022 was that it was a loan to him. It is easy to imagine that Harris might have been in need of money for gambling and hit upon the money held by Mr Ronis as a source. He may initially have intended, or hoped, to be able to repay. Although Harris later changed his story, he gave no explanation for why how he came to give his initial account if it was incorrect.

Harris’ later explanation for the $1,000 receipt is highly implausible. Harris says that after collecting the money from Mr Ronis he took the money “back” to his mother and was then told by her to spend the money on the house. By the time the conversation happened, the deceased was living in the Yagoona nursing home. Leaving aside the questions about her mental capacity (she had suffered her stroke six months beforehand), what was the point of taking the money to her at all?

Harris’ version of the conversation with Mr Ronis at the time of the $10,000 receipt in November 2022 is different from that of Mr Ronis. Mr Ronis’ evidence was that Harris represented that the money was needed for his mother. Harris is most unlikely to have said that if he had been asked to collect the money for Andrew as he claims.

It is also implausible to suppose that Andrew would have asked Harris to collect the money on his behalf. If Andrew wished to obtain the money for the estate he could readily have collected it himself. If he was planning to misappropriate it, as Harris alleges, the last thing he would have done would have been to use Harris as a go-between.

I found Andrew to be a generally credible witness. He was not demonstrated to be wrong on any significant point. In cross-examination counsel began a line of questioning on a collateral matter for the purpose of attacking Andrew’s credit but Andrew’s responses were straightforward and believable, and counsel abandoned the challenge. There is no evidence whatever to support the allegation that Andrew collected his mother’s money and took it for himself.

On the other hand, there were clear and demonstrated shortcomings in Harris’ evidence. Where it is his word against Andrew’s I must prefer Andrew.

Again, my rejection of Harris’ testimony on this point has adverse implications for his credibility. I have found that he told a false story, and it seems impossible that that could have been the product of an honest mistake.
Care provided by Harris to the deceased: On Harris’ own evidence, it is clear that his claims in his first affidavit to having provided care for his mother for more than 20 years, on a fulltime basis, were grossly exaggerated. There is no reason to doubt that Harris did provide care to his mother of the types which he described. But that was long after Harris had moved into Marshall Street with her. At least for a decade or so after they moved in together, she seems to have had little if any need for care, although I do not doubt that she enjoyed and benefitted from Harris’ companionship during this period.
Even from, say, 2015 onwards, I do not accept that Harris was caring fulltime for his mother as he claimed. On Harris’ own evidence, there were periods of intense gambling activity when he could not have been doing so. There is also Andrew’s evidence, which was not contested, that on occasions when he visited (and such visits took place once a week) Harris was absent, or at least, stayed in his room. He never saw Harris providing any help.
In this regard, I also think that the omissions from Harris’ account of events are significant. Although Harris mentioned in passing, when describing the work he was doing, that carers were involved, he did expressly volunteer this, and he presented no evidence about how much professional care the deceased received over the last five years or so of her life. The evidence from Andrew that the deceased was placed in a nursing home as a result from advice from her doctors that she could no longer be cared for at home suggests that the in-home care provided to her by professionals may have been significant (again, this evidence was not contested).
Counsel for Harris emphasised that Andrew himself had conceded that Harris did provide care for the deceased, at least during her final years of living at Marshall Street. But that is not in dispute. The question is, how much care was provided by Harris. On that question I do not have precise enough evidence from him, or from others, which allow me to make any assessment. I think the list of tasks which he undertook must be understood as a list of tasks which were undertaken from time to time, not necessarily every day and certainly not all day every day. It is impossible to say any more than that.
The evidence from Harris is self-serving and its exaggerated nature makes me somewhat sceptical of it, together with the questions over Harris’ reliability generally.
Financial contributions by Harris: I am similarly sceptical of Harris’ claimed financial contributions. In the end, it is clear that Harris did not undertake all of the renovation and other works at the property. At least some of the works were undertaken by tradespeople, and were paid for by the deceased. Harris’ claim to have built the extension at the rear of the house was left in a contested state on the evidence and appears to have dated from long ago. I do not think it is possible to make any definitive findings about the degree of works undertaken by Harris or the financial benefit to the deceased, if any, from those works.
I see no reason to question Harris’ evidence that he contributed to household expenses such as food, but that does not necessarily mean that I should accept his estimate of $100 per week. More importantly, I have not been convinced by the assertions made in the fourth affidavit that he paid for property outgoings and utility charges. Certainly, by 2023-2024 he was not doing so.
Again, I am unable to make any concrete finding as to financial benefits that Harris may have provided to the deceased. On the other hand, Harris himself concedes that he never paid rental board and that his mother paid for the purchase of three cars for him (admittedly a very modest value). I am unable to find that on balance Harris made any significant contribution to defraying the expenses which the deceased would have incurred had she been living on her own.
Deceased’s testamentary intentions: Harris’ testimony about Andrew taking the deceased to a solicitor's office to make her 2012 will seemed to carry the innuendo that Andrew might have directed or influenced the will’s content. But Harris’ case contained no evidence to support that idea. No-one suggested that the deceased's mental state in 2012 was such that she was liable to be manipulated. There is no reason not to accept the 2012 will as an authentic expression of her informed wishes at the time.
On Harris’ case, however, the deceased’s views later changed. The conversation at Hixson Gardens in March 2022 was relied upon as direct evidence of that change.
In his written closing submissions, counsel for Andrew appeared to be developing an argument, based on the medical records of the deceased which are in evidence, that by March 2022 the deceased's cognitive capacities had declined to the point that she had lost capacity. But counsel for Harris complained about the lack of an express medical opinion to that effect and counsel for Andrew took the point no further.
Counsel for Harris was of course correct in saying that no medical report on the deceased’s capacity was obtained for the purpose of these proceedings. But on Harris’ own evidence the deceased became forgetful, and her behaviour changed. The diagnosis of dementia is also recorded in the deceased's medical records which were tendered without objection.
The diagnosis was of “Lewy body dementia”. I think that I can take judicial notice of the following description of that condition from John D. Firth, Christopher P. Conlon, Timothy M. Cox, Oxford Textbook of Medicine (6^th ed, 2020, Oxford University Press):

... Promises made and expectations raised by testators have always been regarded as relevant to the ascertainment of what is proper provision for a claimant, though this may be more so where a claimant has relied to his or her detriment on any such promise or expectation. The requirements of conscionable behaviour which inform the doctrine of equitable estoppel are philosophically closely analogous to the concept of “moral duty” which has traditionally informed the exercise of jurisdiction under the Family Provision Act and its predecessors ...

In response, counsel for Andrew submitted that this was a case in which the terms of the will are of considerable evidentiary weight in deciding whether the provision for Harris is inadequate. Counsel cited the statement by White J in Slack v Rogan [2013] NSWSC 522 at [127] (citations omitted):

In my view, respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, … there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed.

Counsel submitted that this reasoning was applicable to the present case. I think there is force in that submission.
When the will was made, Harris had been living with the deceased for almost ten years. He had not managed to achieve any financial self-sufficiency, and it must have been obvious to the deceased, with Harris’ gambling and his withdrawal from the labour market, that he was unlikely ever to do so. Yet the deceased evidently felt that there was no good reason to give Harris a larger share of her estate than her other children. As already noted, there was no suggestion that the deceased was in any way imposed upon in making this judgment.
In the end, I do not think that counsel for Harris contested this. Counsel did not suggest that if the deceased had died immediately after making the 2012 will that Harris would have had any legitimate claim to more than an equal share of the estate. Rather, the case advanced by counsel was that the position had changed after the will was made. The deceased had become dependent upon Harris; Harris had felt obliged to devote himself to caring for her; and as a result he had missed out on life opportunities and financial opportunities which could not now be recaptured.
The adequacy of the provision made for Harris in the will is to be judged by the circumstances which exist at the date of the hearing. Counsel for Harris submitted that, having regard to Harris’ parlous financial position, being essentially destitute, proper provision involved giving him a home in which to live, rent free, for the rest of his life.
Counsel’s primary submission was that this should be achieved by means of a Crisp order (see J1 [52]). Alternatively, Harris should receive a cash legacy sufficient to pay for rented accommodation for at least the rest of his current life expectancy (said to be 15 years).
I do not doubt that Harris provided care for the deceased while he lived with her, and for which she was grateful. It may also have deferred the time at which she had to leave her house and go into a nursing home. But Harris also derived financial advantages from not having to pay rent, and from the other monetary support the deceased gave him. In net terms he did not contribute to the overall value of her estate.
And for reasons I have given I do not accept that any promises of tenure were made to Harris by the deceased. Nor do I accept that Harris could, or would, have been able to provide a home for himself if he had acted otherwise.
Harris’ lack of savings and dependency on welfare for his income, considered on their own, do not make the provision made in his favour by the will inadequate for his proper maintenance or advancement. They result from choices Harris has made, particularly his indulgence in gambling, for which the deceased was in no way responsible.
In assessing the propriety of the provision for Harris, it is also I think relevant that the deceased divided her estate equally between her children. Such testamentary schemes are common in cases such as the present. They reflect basic notions of justice (“equity is equality”) and filial autonomy. In my opinion the circumstances would need to be extraordinary before a division of this type would offend “community standards”.
In the present case, making additional provision for Harris would lead to a very unequal outcome. He would get half the net estate or even more, leaving the deceased’s four other children to share whatever was left. The deceased would of course have been free to structure her will that way, but can it really be said that she had a moral duty to do so?
Andrew’s case illustrates the problem in a stark way. Counsel submitted that he had stable and relatively comfortable living arrangements, but the fact remains that he is dependent upon his son George and has no security of tenure. His wife Maria is currently able to support him and in a sense, he is choosing not to work or go onto welfare. His “needs” may be, as counsel submitted, less than Harris’ “needs”. But why should be he be forced to continue to depend upon his wife or son, or upon welfare payments, and be deprived of his share of the deceased’s estate, just because Harris has failed to make adequate provision for himself over the last 25 years?
For these reasons, I do not consider that Harris’ proper maintenance and advancement required the deceased to provide him with accommodation, rent-free, for the rest of his life.
Both the deceased and Harris were happy to live together. It might be argued, however, that it would have been better for the deceased and Harris to have recognised that in the long run he would be dependent upon social housing, and to have acted earlier to get on the waiting list for it. If Harris has suffered any detriment from continuing to live with his mother at her request, it is that.
Harris’ case, however, was not put this way. That may not be surprising because such a case faced a number of difficulties.

While Harris, now that he is on the disability pension, would presumably qualify for social housing, it is far from clear that he would have done so before 2023. Up until then, it would seem, he was fit and able to work but choosing not to do so.

Harris faced the prospect of moving out of the house from 2021. In the end he had almost four years to make his plans. He appears to have made little or no effort to obtain alternative housing until very late in the day.

A conclusion that Harris had suffered detriment of this type would not result in the further provision which Harris seeks, namely rent-free accommodation for life. It would only require a sufficient sum of money to cover the waiting period for social housing to become available. And there is no reason to think that the one-fifth share of the deceased’s estate would have been inadequate for this purpose.

Had Harris’ claim not failed at the first stage, there would still have been further difficulties in awarding him the provision which he seeks. Two particular problems stand out. One is that the Crisp order which he seeks raise practical problems which have not been addressed. The other that there is a lack of evidence about the cost of the accommodation options which he is claiming.
When these proceedings were commenced, the relief claimed on behalf of Harris was for an order that “provision” (not further specified) be made for Harris out of the deceased’s estate. At J1 [45]-[47], I said that this formulation was inadequate. Practice required the summons to set out the relief claimed in the form of the order or orders actually sought from the Court.
The summons was later amended, but not in a way which solved the problem. Harris now seeks “a Crisp Order” obliging the estate to provide “suitable accommodation” to Harris or, in the alternative, “funds sufficient” to allow him to obtain “suitable accommodation on an ongoing basis”. Apparently by way of further alternative, the original bald prayer for “provision” from the deceased’s estate has been retained.
In written submissions prior to the hearing in May, counsel for Andrew complained that Harris had not specified the precise terms of the relief which he was seeking. This prompted a response in the written submissions in reply by counsel for Harris. Counsel submitted (emphasis added):

It was made clear in … the Plaintiffs Outline that the appropriate Crisp Order would not be for a house but rather a home unit or apartment in Bankstown. Adopting the Median price for such a dwelling appearing in Mr Staltari's Report … as a "cap" to place an appropriate limit in view of the size of the Estate … the suggested wording of an appropriate Crisp Order might be as follows:
"Order that the trust contained in clause 3 of the Will of the Deceased dated 30 November 2012 ("the Will") be varied to provide for:
(a) a right of the Plaintiff, Harris Theocharous, to reside at no cost in a home unit or apartment accommodation located in Bankstown, New South Wales ("the property") up to a purchase price of no more than $539,750 provided he:
(i) pays all outgoings referable to the period of his occupation and to be subject to adjustment if necessary on the date of his vacation of the Property;
(ii) keeps the Property insured in respect of fire, storm, tempest, and other insurable risks and the Plaintiff will provide evidence to the Defendant of such insurance and its renewal for each policy year;
(iii) keeps the Property in a good and habitable state ofrepair (fair wear and tear and damage by fire, lightning, flood, tempest and other inveitable accident excepted and having regard to its state of repair upon purchase);

(b) the registered proprietor of the said property to be the Defendant, Andrew Theocharous, as Executor of the Deceased's Estate, to be held on trust for Harris Theocharous until his death at which time the said property, or any proceeds of its sale, is to be dealt with in accordance with the terms of a Will to the exclusion of any further entitlement of the Estate of Harris Theocharous; and
(c) the Plaintiff is entitled to require the Defendant to sell any such property owned by the Defendant on behalf of the Estate and use the proceeds that may include purchasing alternative accommodation for the Plaintiffs use and occupation for life or providing accommodation for the Plaintiff in a retirement village or similar accommodation providing hospitalisation and nursing care if required.”

This formulation, which was expressly tentative in its wording, still left important questions unanswered. A central one was when the administration of the estate would be completed; that is, whether the “Crisp Order” was to have the effect of deferring the completion of administration, and the distribution of the residue, until Harris’ life interest had terminated, or the estate would instead be fully administered and some portion of it settled on a will trust, so that a distribution of residue could be made now. This distinction is of considerable practical importance, as is illustrated, for example, by Neal v Brown [2024] NSWSC 841.
When confronted with this question, counsel for Harris said that the intent was for the final administration of the estate to be deferred, and any distributions of residue to be made, after Harris’ death. Counsel appeared to acknowledge that that meant that Harris’ siblings (or their heirs) would have to wait until then before they would receive anything.
This in turn gave rise to further questions. Was Andrew to be required to continue to act as trustee for the next 20-25 years? (the answer apparently was yes). If so, was he to be remunerated? (No). Who was going to prepare the tax returns for the income which would be received (and presumably accumulated) in the meantime? (apparently, Andrew would pay, but would have an indemnity out of the estate income). Harris would be obliged to pay some of the expenses but not all of them, and in particular not for structural repairs. Presumably these would need to be paid for out of the estate (counsel confirmed it). And the result of this structure was that Harris would receive nothing out of the estate; how then was he to pay the costs ordered against him in the possession proceedings, or any liability he might be found to have with respect to the Ronis loan? (apparently he would go bankrupt and continue to enjoy the benefit of the trust in his favour, with the estate bearing the loss).
Counsel’s answers to these questions were proffered tentatively. He submitted that they did not need to be finally determined at this stage of the proceedings. All that the Court needed to do was to find that a “Crisp order” should be made. What counsel characterised as “nuts and bolts” would be determined in negotiation with Andrew as executor and recorded in a formal order in due course. Dealing with them should be deferred until that point.
I do not accept these submissions. I think they are wrong in principle as well as being contrary to proper practice.
The starting point is that a successful application for provision takes effect as a codicil to the relevant will. It is of course open to an executor to make submissions as to the terms of any order which might be made. But ultimately it is the executor’s duty to give effect to any order made, not to lend assistance in formulating its terms. Nor is the Court’s responsibility to do so. It is a task for the plaintiff.
Nor is it satisfactory to ask the Court to make some sort of general ruling on the plaintiff’s entitlement to provision, and defer the precise formulation of the order until afterwards. The Court cannot make a final order until the terms of the order are settled. In accordance with what I have already said in the possession proceedings, proper practice requires the plaintiff to specify the full terms of the order sought in the summons so that they are available to the executor well before trial.
The present case illustrates the sort of problems which can otherwise arise. The full extent to which Harris sought to have the Court interfere with the testamentary provisions in favour of his siblings was only exposed in the course of final oral submissions. Serious injustice might have been occasioned to them if they had not been aware of what lay beneath the surface of the bland claim for “provision” stated in the summons.
In the end, counsel for Harris fairly acknowledged the practical problems with his Crisp order proposal. He did maintain a claim for such an order, but only faintly. His circumspection was justified. I think such an order was out of the question in the present case.
In the end, because I have concluded that Harris’ claim fails at the first step, no injustice arises so far as his siblings are concerned. But that does not mean that the point is unimportant. If Harris’ legal advisors had set out in advance to formulate the Crisp order they were seeking, as I think they should have, the difficulties with it might have been recognised earlier. Significant time and costs might have been saved for Harris as well as for the estate.
I turn now to the second problem with the provision sought. This affected both the Crisp order and the alternative claim for a lump sum to cover Harris rental costs for the rest of his life.
The problem was that in each case Mr Staltari’s evidence was based on a median figure for a one or two bedroom unit Bankstown. But in truth there was no reason why Harris had to live in that particular suburb. It was common ground that cheaper accommodation would be available in other suburbs of Sydney (or even outside Sydney). Nor was there any properly demonstrated need for Harris to be provided with a two bedroom unit.
In a case such as this, one would expect the plaintiff’s legal representatives to identify the minimum requirements for the plaintiff’s alleged future accommodation needs and obtain valuation evidence canvassing the cheapest option within the relevant geographical area. In the present case that has not been done. Mr Staltari’s evidence was limited, artificially, to accommodation in Bankstown. The supplementary evidence from Harris canvassed other suburbs but was hardly comprehensive.
When I raised this with counsel for Harris, he responded that this was the evidence before the Court. The implication was that the Court would simply have to do its best with what it had. Counsel noted that no evidence on the subject had been presented on behalf of Andrew.
If this was meant to indicate that Andrew had some sort of responsibility to present evidence somewhere else where Harris could live which was cheaper, I disagree. It was Harris’ responsibility, not Andrew’s, to present evidence showing how Harris’ alleged needs could be accommodated at minimum reasonable cost. There was no justification for spending more on Harris’ accommodation when the funding from doing so had to come out of the pockets of his siblings.
For these reasons, had I found that a further provision should be made for Harris in the form of a sum sufficient to cover rental of a property for him for the rest of his life, there would still have been a difficulty in making an order in his favour. I would have lacked the evidence to make a proper assessment of what the appropriate sum should be.

Conclusions

I have concluded that:

the claim against Harris to recover monies received by him from Mr Ronis succeeds, and judgment should be entered against him in favour of Andrew as executor of the deceased’s estate in the sum of $42,554 plus interest;

Harris’ claim for family provision fails and should be dismissed.

On 12 June, I issued to the parties a draft of a judgment to this point and invited them to address me on the form of the orders required to give effect to those conclusions, and costs. The hearing took place on 13 June. Interest calculations on the judgment to be entered against Harris were agreed. The parties, however, disagreed about costs.

Costs

Counsel for Andrew sought an order that Harris, as the unsuccessful party, pay the costs of the proceedings. Costs were sought on an indemnity basis as a result of a formal offer of compromise made under the Rules on 8 July last year. The offer was for Harris to receive, in lieu of the one-fifth share of residue provided in the deceased’s will, a lump sum legacy of $301,000, plus an order for costs in his favour to be paid out of the deceased’s estate.
Another letter of formal offer of compromise was made on 17 July. This provided for an increased lump sum legacy of $351,000.
At the time these offers were made, the estate had not incurred the costs of the possession proceedings or the expenses of obtaining vacant possession of the property from Harris. The costs incurred in these proceedings would have been much less than they are now.

Even so, the net value of the estate is unlikely to have exceeded $1.2 million. The first offer would have given Harris 20% more than the one-fifth share of the estate left to him in the will, together with costs. Counsel for Harris accepted that the offer was clearly more favourable than the eventual outcome of the proceedings from Harris’ point of view. The later offer was even more favourable.
Counsel for Harris also accepted that the two offers were valid ones which complied with the terms of the Rules. UCPR r 42.15A therefore gives Andrew a prima facie entitlement to costs (on an indemnity basis from the date of the offer) unless the Court otherwise orders.
Counsel for Harris submitted that the circumstances of the present case justified a departure from the prima facie rule of liability established by r 42.15A. These included the following.

Harris had been an eligible applicant.

The application had not been frivolous or vexatious. Having lived with his mother most of his adult life, Harris had a reasonable expectation for provision for accommodation in the will.

Owing to Harris’ desperate financial circumstances, a costs order would bear very harshly upon him. Given the liability for costs already incurred in the possession proceedings, and the liability with respect to the Ronis loan monies in this judgment, a costs order against him would certainly exceed any remaining entitlement he would have in the estate.

The power to award costs should not be exercised in a punitive fashion.

Counsel referred me to the decision of Hallen AsJ in Harkness v Harkness (No 2) [2012] NSWSC 35. In that case, his Honour pointed the well-known statement by Gaudron J in Singer v Berghouse [1993] HCA 35:

“Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate."

Hallen AsJ, however, observed:

Parties should not assume that this type of litigation can be pursued, safe in the belief that costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199; Forsyth v Sinclair (No 2) [2010] VSCA 195. It is now much more common than it previously was for an unsuccessful applicant to be ordered to pay the defendant's costs of the proceedings (Lillis v Lillis [2010] NSWSC 359 at [23]) and be disallowed his, or her, own costs.

The present case has an additional feature which was not present in Harkness. It involves an offer of compromise creating a prima facie liability to pay costs (and on an indemnity basis) under r 42.15A. Counsel did not suggest that the rule applied with any lesser force in family provision proceedings; understandably so, as there would have been no textual basis for any such submission.
As Harkness shows, the force of Gaudron J’s dictum in Singer v Berghouse has been attenuated by the subsequent course of authority. Any idea that there should be some special rule for family provision proceedings must be even more attenuated where specific costs rules based on settlement offers are involved, as in the present case.
It may be accepted that the claim was not frivolous or vexatious. But the expectation behind it, that Harris should be provided with some special provision for accommodation at the expense of his siblings, has been rejected by the Court. And it has done so because of Harris’ failure to prove that promises were made to him, or that, even if they were, they resulted in financial detriment.
The result is a harsh one for Harris, but is, I consider, required by the terms of the Rules. It cannot be regarded as punitive. There is no reason to depart from the entitlement created by r 42.15A. Harris will therefore be ordered to pay the costs of the proceedings, on an indemnity basis from the date prescribed by the rule.

Orders

The orders of the Court are:

Order that there be judgment for the defendant against the plaintiff for monies had in received in the sum of $48,737, including $6,183 in interest.

Order that the plaintiff pay the defendant’s costs of the proceedings:

until 8 July 2024, on the ordinary basis; and

from 9 July 2024, on the indemnity basis.

Order that the plaintiff’s judgment liability under order 1 and the plaintiff’s costs liability under order 2 be set off against the plaintiff’s share of the deceased’s estate.

**********

Amendments

18 July 2025 - amendment to order (1)

Decision last updated: 18 July 2025

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