The court directs the parties to bring in short minutes of order to give effect to these reasons for judgment.
Catchwords:
PROCEDURE – Issue estoppel – Abuse of process – Consent orders – Where plaintiff claimed property was part of deceased’s notional estate – Where defendant agreed to consent orders designating property as part of the deceased’s notional estate in a related application for family provision orders – Whether the defendant’s consenting to orders constituted an admission that the property was part of the deceased’s notional estate – Where related proceedings and current proceedings were heard together with evidence in one being evidence in the other – Whether consent orders created an issue estoppel – Whether it is an abuse of process for the defendant to deny that the property is part of the deceased’s notional estate.
SUCCESSION – Family provision – Whether adequate provision has been made for the proper maintenance, education and advancement in life of the plaintiff – Where plaintiff was the estranged son of deceased – Consideration of ‘community standards’ – Where deceased transferred interests in property to his other son and a daughter between one and three years before his death – Whether property should be designated as part of the deceased’s notional estate – Whether deceased transferred property wholly or partly to deny or limit provision being made out of his estate – Significance of burden of evidence shifting to defendant to call evidence to dispel the appearance that deceased was partly actuated by an intention justifying designation of property as notional estate.
Succession Law and Practice New South Wales (Butterworths).
Category:
Principal judgment
Parties:
Victor Toscano (plaintiff) Anthony John Toscano (first defendant) Katrina Carmel Morabito (second defendant)
Representation:
Counsel: A Blank (plaintiff) L Ellison SC (first and second defendants)
Solicitors: Hudson Law (plaintiff) Mills Oakley (first and second defendants)
File Number(s):
2015/329067
Publication restriction:
None
Judgment
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Toscano v Toscano [2017] NSWSC 419
Case
[2017] NSWSC 419
Decision Date
CaseChat Overview and Summary
Toscano v Toscano involved a dispute between the plaintiff, who was the estranged son of the deceased, and the defendant, another son of the deceased. The plaintiff sought family provision orders, arguing that he had not been adequately provided for by the deceased’s estate. The deceased had transferred interests in property to the defendant and another sibling prior to his death, and the plaintiff claimed these transfers were made to deny or limit provision for him. The court had to determine whether these properties should be designated as part of the deceased's notional estate and whether the deceased was partly motivated by an intention to limit provision for the plaintiff.
The legal issues before the court included whether the defendant's consent to orders in related proceedings constituted an admission that the property in question was part of the deceased's notional estate, thus creating an issue estoppel. The court also had to consider whether it was an abuse of process for the defendant to deny that the property was part of the deceased's notional estate after agreeing to such orders in the related proceedings. Additionally, the court needed to assess whether the deceased had made adequate provision for the plaintiff’s maintenance, education, and advancement in life, taking into account the transfers of property and the applicable community standards.
The court found that the consent orders in the related proceedings did not create an issue estoppel, as the consent was not an admission of the property's inclusion in the notional estate but rather a tactical agreement in the context of the related application. The court further determined that it was not an abuse of process for the defendant to challenge the inclusion of the property in the notional estate in the current proceedings. Regarding the adequacy of provision, the court concluded that the deceased had made adequate provision for the plaintiff, considering the circumstances and the burden of evidence shifting to the defendant to disprove the appearance of an intention to limit provision.
No specific final orders were made in the extract provided.