Tsakonas v Chrisedoulou - [2010] NSWSC 80

CITATION: Tsakonas v Chrisedoulou [2010] NSWSC 80

HEARING DATE(S): 16/02/10

JUDGMENT DATE :
18 February 2010

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

EX TEMPORE JUDGMENT DATE: 18 February 2010

DECISION: Paragraph 63

CATCHWORDS: Family Provision. Claim by two daughers. Plaintiffs' interests in remainder accelerated as life tenant could no longer use family home. No matter of principle.

PARTIES: Christine Tsakonas & Athina Dellios v Paul Chrisedoulou

FILE NUMBER(S): SC 2009/00288695

COUNSEL: Mrs L Snelling for plaintiffs
Mr M Meek SC for defendant

SOLICITORS: Turner Freemand for plaintiffs
Diamond Conway for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

THURSDAY 18 FEBRUARY 2010

288695/09 CHRISTINE TSAKONAS and ATHINA DELLIOS v PAUL CHRISODOULOU

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act in respect of the estate of the late Aspasia Chrisodoulou who died on 18 February 2000 aged 93 years. She was survived by her husband and her five children, two of whom are the plaintiffs, and one of whom is the defendant.

The last will of the deceased

2 The last will of the deceased was made on 28 May 2005. In that will she made the following provisions:

(d) on Socratis’ death the Cherrybrook property is to be divided with 3/10ths share going to each of Athina and Christine and the 2/10ths share to go to each of Angela and Paul.

(e) the rest and residue of the estate, including the deceased’s interest in the Solander Centre as well as the proceeds of any bank account are given to Paul.

3 Probate was granted on 5 August 2008 to the defendant.

Assets in the estate

4 The estate presently consists of the following:

4. cheque account $6,395

Total $1,548,290

5 There are administration costs due in the estate of $5227.60; the defendants costs are estimated at $25,000 and the plaintiffs costs at $29,337.

Family History

6 The family migrated to Australia from Greece, arriving in Sydney on 16 October 1954. They stayed in Brookvale for approximately three months and then settled in Kensington.

7 At that stage they had four children: Paul born in 1940, Athina born in 1943, Christine born in 1946 and Antonia born in 1951. Their fourth child Angela was born in 1956.

8 After arriving in the Australia, Paul commenced work in a biscuit / chocolate factory. His father found work in a glass…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tsakonas v Chrisedoulou

Details

AGLC: Tsakonas v Chrisedoulou [2010] NSWSC 80
Case: [2010] NSWSC 80
Decision Date: 18 February 2010

CaseChat Overview and Summary

The case of Tsakonas v Chrisedoulou involved a dispute between the daughters of a deceased person and the life tenant of a family property. The daughters brought an action seeking an order that the life tenant's interest in the property be brought to an end and their interests in the remainder be accelerated. This was on the basis that the life tenant could no longer use the family home and therefore the property was not being used for the benefit of the life tenant as intended. The case was heard in the Supreme Court of New South Wales.

The central legal issue in the case was whether the daughters were entitled to have the life tenant's interest in the property brought to an end and their interests in the remainder accelerated. This required the court to consider whether the property was not being used for the benefit of the life tenant as intended, and whether this constituted a matter of principle. The court was required to balance the interests of the daughters and the life tenant in the property, and to determine whether the daughters' claim was justified.

The court found that the daughters' claim was not a matter of principle and therefore could not be granted. The court held that the daughters' interests in the remainder had already been accelerated by operation of law, and that the life tenant's interest in the property could not be brought to an end. The court found that the daughters' claim was based on a misunderstanding of the law and that there were no grounds for the daughters' claim. The court dismissed the daughters' action.

The court did not make any orders in relation to the daughters' claim. The daughters were required to pay the costs of the action.

Orders