Vanger v Bozzato - [2012] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
VANGER v BOZZATO & ANOR
[2012] SASC 227
Reasons of Judge Burley a Master of the Supreme Court
19 December 2012
EQUITY
Application for interlocutory injunction - deceased estate - plaintiff seeks paternity declaration - intends to bring claim under Inheritance (Family Provision) Act 1972 - some of deceased's monies held in a bank account - whether first defendant should be restrained from "disbursing or in any way diminishing the assets of the estate" - whether existing cause of action - prima facie case.
Inheritance (Family Provision) Act 1972 s 6(c), referred to.
Nobile v Scragg & Ors [2011] SASC 182; Burns v Elder's Trustee and Executor Co Ltd & Anor [1968] SASR 397; Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; Palmer v MacDonald Shire Council (2011) 29 NTLR 90; RTP Holdings Pty Ltd v Roberts (No 2) [2000] SASC 390; Zucker v Tyndall Holdings PLC [1993] 1 All ER 124; Brereton v Milstein [1988] VR 508, applied.

VANGER v BOZZATO & ANOR
[2012] SASC 227
JUDGE BURLEY:

By his Second Summons the plaintiff seeks a declaration of paternity pursuant to s 9 of the Family Relationships Act 1975 and an order pursuant to s 11 of the Powers of Attorney and Agency Act 1984 requiring the first defendant to provide copies of all records and accounts that are kept by her concerning the exercise by her of the powers conferred on her by an enduring power of attorney.
The plaintiff claims to be the son of Mihaly Cserhalmi who died on 26 March 2011. The first defendant is the daughter of the deceased. The plaintiff’s mother was Marta Fischer.
By paragraph 3 of the Second Summons the plaintiff has sought injunctive relief against the second defendant restraining it from paying out monies in two bank accounts to or at the direction of the first defendant.
By an Interlocutory Application filed on 26 September 2012 (FDN3), the plaintiff seeks an order as follows:
3An order restraining the first defendant from disbursing or in any way diminishing the assets of the estate of the deceased Mihaly Cserhalmi pending the outcome of these proceedings.
This was the only relief sought on the interlocutory application when it was brought on for hearing on 6 December 2012. At the hearing Mr Howard appeared for the plaintiff and Mr Ower for the first defendant. The two affidavits of the plaintiff filed respectively on 26 September 2012 and 4 December 2012 were relied upon by the plaintiff. They were admitted, except for the exhibit which comprised a copy of the will of the deceased. The first defendant relied on the affidavit of the first defendant’s solicitor, Mr Jordan, filed on 23 November 2012. This was admitted, again without the copy of the will of the deceased.
Each counsel filed a written outline of submissions.
The Court has not yet dealt with the plaintiff’s application for a paternity declaration.
Paragraphs 1 to 10 of the…

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 Vanger v Bozzato

Details

AGLC: Vanger v Bozzato [2012] SASC 227
Case: [2012] SASC 227
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia was presented with an application for an interlocutory injunction by the plaintiff, Vanger, who sought a declaration of paternity and a restraint on the defendant, Bozzato, from disbursing or diminishing the assets of the estate of the deceased, Mihaly Cserhalmi. Vanger claimed to be the son of Cserhalmi, who died on 26 March 2011, and aimed to bring a claim under the Inheritance (Family Provision) Act 1972. The legal issues the court had to resolve included whether Vanger had a cause of action available to him and if he could establish a prima facie case for an interlocutory injunction.

The court held that Vanger's application for an interlocutory injunction was premature as there was no cause of action available to him until there was a grant of probate and a declaration of paternity. The court referred to several cases to support its reasoning, such as Nobile v Scragg & Ors, Burns v Elder’s Trustee and Executor Co Ltd & Anor, and Australian Broadcasting Corporation v O’Neill. The court found that Vanger could not establish a prima facie case because, without a declaration of paternity and a grant of probate, he did not have a cause of action against Bozzato. Furthermore, the court considered that the application did not meet the criteria for a Mareva injunction, as it did not involve an accrued or prospective cause of action that was immediately enforceable. The court also noted that Bozzato had provided an undertaking to notify Vanger of any intended distributions from the estate, which alleviated any concerns Vanger might have had.

Consequently, the court dismissed Vanger's application for an interlocutory injunction. The court found that the plaintiff's position was adequately protected because if a paternity order was made, and once the grant of probate was finalised, Vanger would be able to make an application to protect his interests.

Orders