Wang v D'Ambrosio

Case [1999] NSWSC 227
CITATION: WANG V. D'AMBROSIO [1999] NSWSC 227
CURRENT JURISDICTION: Equity Division
FILE NUMBER(S): No. 1140 of 1995; No. 2606 of 1996
HEARING DATE(S): 15, 16, 17, 18 March 1999
JUDGMENT DATE:
18 March 1999

PARTIES :
Lucy Wang
Sam D'Ambrosio
JUDGMENT OF: Hodgson CJinEq
COUNSEL : Mr. R. Wilson with Mr. Healey for Miss Wang
Mr. Dupree for Mr. D'Ambrosio
SOLICITORS: G.H. Healey & Co., Newtown for Miss Wang
Whittens, Sydney for Mr. D'Ambrosio
CATCHWORDS: FAMILY PROVISION AND MAINTENANCE - Eligible person - Costs. HELD that paragraph (a)(ii) of the definition of 'eligible person' in the Family Provision Act did not prescribe a different test from that in the definition of 'de facto partner' in the De Facto Relationships Act; and that, where costs incurred by an executor were disproportionate to the size of the estate and issues, and the case had been conducted with some animus against the plaintiff, the executor's costs would be on a party and party basis.
ACTS CITED: Family Provision Act, s.6
De Facto Relationships Act, s.6
DECISION: See end of judgment

22

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

CORAM: HODGSON,CJ IN EQ.

Thursday 18 March 1999

NO. 1140 OF 1995
WANG V. D'AMBROSIO
ESTATE OF JOHN NEWMAN

NO. 2606 OF 1996
D'AMBROSIO V. WANG
ESTATE OF JOHN NEWMAN

JUDGMENT

1 HIS HONOUR: The late John Newman was murdered on 5 September 1994. He left an estate comprising his home at 15 Woods Avenue Cabramatta, furniture, a motor vehicle, money and securities to the value of about $50,000.00, and superannuation then estimated to be around $180,000.00. By his last will dated 3 January 1992, Mr Newman appointed Sam D'Ambrosio as executor, gave the home and its contents to his mother, $100,000.00 to his brother, $10,000.00 each to three friends, and the residue for a proposed charitable purpose.
2 At the time of his death, Mr Newman's fiancee Lucy Wang resided with him at the Woods Avenue property, and she continued to reside there for some time after his death. On 25 January 1995 Miss Wang commenced proceedings under the Family Provision Act against Mr D'Ambrosio, claiming provision out of the estate. On 13 July 1995, Mr D'Ambrosio commenced proceedings against Miss Wang, claiming possession of the Woods Avenue property. In about October 1995, Miss Wang left the property, and the proceedings are now being pursued with a view to claiming damages or rent from the date of Mr Newman's death.
3 I am dealing now with Miss Wang's claim under the Family Provision Act, and Mr D'Ambrosio's claim for a little over $11,000.00 rent plus about $3,600.00 interest.
OUTLINE OF FACTS
4 I will commence by giving an outline of the facts.
5 Mr Newman and Miss Wang met in about March 1993. Mr Newman had been born in 1948, had married in 1972, and had a son in 1973. In 1979, Mr Newman's wife and son were killed in a car crash. He entered New South Wales Parliament as the…

Details
AGLC
Wang v D'Ambrosio [1999] NSWSC 227
Case
[1999] NSWSC 227
Decision Date

CaseChat Overview and Summary

The case of Wang v D'Ambrosio arose in the Supreme Court of New South Wales. The dispute centred on the application of the Family Provision Act and the De Facto Relationships Act, particularly regarding the eligibility of a person to make a claim against an estate and the associated costs incurred by the executor. The plaintiff, Wang, sought to claim against the estate of his deceased partner, arguing he was an eligible person under the Family Provision Act. The executor, D'Ambrosio, opposed the claim, contending that Wang did not meet the criteria set out in the Act.

The primary legal issues before the court were whether the definition of 'eligible person' in the Family Provision Act differed from that of 'de facto partner' in the De Facto Relationships Act and whether the executor's costs, which were disproportionate to the size of the estate, should be assessed on a party and party basis. The court examined the relevant statutory provisions and considered the nature of the relationship between Wang and the deceased, as well as the conduct of the proceedings.

In its decision, the court held that the definition of 'eligible person' under the Family Provision Act did not prescribe a different test from that of 'de facto partner' in the De Facto Relationships Act. This meant that the court applied the same criteria to determine whether Wang was an eligible person. Regarding the executor's costs, the court found that the amount incurred by D'Ambrosio was disproportionate to the size of the estate and the issues at hand. Additionally, the court noted the presence of animus in the conduct of the case. Consequently, the court ruled that the executor's costs would be assessed on a party and party basis.

The court's final orders were that Wang's claim under the Family Provision Act was dismissed, and the executor's costs were to be assessed on a party and party basis. This outcome reflected the court's determination that Wang was not an eligible person under the Act and that the executor's costs were excessive and influenced by animosities during the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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