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Yesilhat v Calokerinos

Yesilhat v Calokerinos

Case [2015] NSWSC 1028 29 July 2015

Summary Judgment

Standing

De Facto Relationships

Application for Security for Costs

Family Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Yesilhat v Calokerinos [2015] NSWSC 1028
Hearing dates: 23 April 2015
Decision date: 29 July 2015
Jurisdiction: Equity Division
Before: White J
Decision:
1. Order that the defendant’s notice of motion filed on 12 November 2014 be dismissed.
2. Order that the defendant pay the plaintiff’s costs of the notice of motion.

Catchwords: WILLS, PROBATE AND ADMINISTRATION – family provision – de facto relationships – application for summary dismissal – whether the plaintiff and the deceased had been in a relationship “as a couple living together” – where plaintiff deposes that the deceased treated his business as his home, and that the plaintiff had a relationship with the deceased and spent time with the deceased at that business over many years for limited periods – held, dismissing the application with costs, that it is arguable that persons may have a relationship “as a couple living together” even though they do not share a “common residence”
PRACTICE AND PROCEDURE – security for costs – inherent jurisdiction – application for security for costs against natural person – application based on a failure to comply with the Court’s directions – no evidence of impecuniosity or other relevant factors – application dismissed with costs
Legislation Cited: Interpretation Act 1987 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Agar v Hyde [2000] HCA 41 ; (2000) 201 CLR 552
Click here to enter text.Burton v Shire of Bairnsdale (1908) 7 CLR 76
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Fancourt v Mercantile Credits Limited (1983) 154 CLR 87
FO v HAF [2006] QCA 555; (2007) 2 Qd R 138
General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125
Hayes v Marquis [2008] NSWCA 10
Jonah v White [2011] FamCA 221; (2011) 258 FLR 236
NSW Trustee and Guardian v McGrath [2013] NSWSC 1894
O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; (2013) 16 BPR 31,705
Peterson v Gregory [2007] NSWSC 8
Rajski v Computer Manufacture & Design Pty Ltd [1982] 2 NSWLR 443
Snow v Snow [2015] NSWSC 90
Spencer v Commonwealth [2010] HCA 28 ; (2010) 241 CLR 118
Tepko Pty Limited v Water Board [2001] HCA 19; (2001) 206 CLR 1
Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2001] UKHL 16; [2003] 2 AC 1
Vaughan v Hoskovich [2010] NSWSC 706
Category: Procedural and other rulings
Parties: Okan Yesilhat (Plaintiff)
Cleopatra Sclavos Calokerinos (Defendant)
Representation:
Counsel:
V Culkoff (Plaintiff)
M B Evans (Defendant)
Solicitors:
Russo & Partners (Plaintiff)
Aston Reid Lawyers (Defendant)

File Number(s): 2014/212466

Judgment

HIS HONOUR: This is an application for summary dismissal of a family provision claim and consequential relief. The proceedings concern the estate of the late George Sclavos who died on 13 August 2013 aged 65. The deceased was not married and had no children. His closest relatives are two nieces, being daughters of his…

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 Yesilhat v Calokerinos

Details

AGLC: Yesilhat v Calokerinos [2015] NSWSC 1028
Case: [2015] NSWSC 1028
Decision Date: 29 July 2015

CaseChat Overview and Summary

In the case of Yesilhat v Calokerinos, the plaintiff sought to challenge the defendant's entitlement to benefits under a will, claiming that the defendant was not in a de facto relationship with the deceased. The matter was before the Court, which needed to decide whether the plaintiff's application for summary dismissal was valid, and if the plaintiff and the deceased had been in a relationship "as a couple living together." The court also considered an application for security for costs against the natural person defendant, which was based on a failure to comply with the Court's directions.

The primary legal issue before the court was whether the plaintiff and the deceased had a relationship "as a couple living together," despite not sharing a common residence. The plaintiff argued that even though they did not live together, they had a relationship that qualified as a de facto relationship. The court needed to determine whether the plaintiff's deposition was sufficient to argue that a de facto relationship existed. Additionally, the court examined the application for security for costs against the defendant, considering whether the failure to comply with the Court's directions justified the application.

The court found that it was arguable that persons could have a relationship "as a couple living together" even if they did not share a common residence. The plaintiff's deposition, which stated that the deceased treated his business as his home and that the plaintiff had a relationship with the deceased and spent time with him at that business over many years for limited periods, was sufficient to support the argument. The court dismissed the application for summary dismissal, finding that there were arguable grounds for the plaintiff's claim. Furthermore, the application for security for costs was dismissed with costs, as there was no evidence of impecuniosity or other relevant factors to justify the application.

In conclusion, the Court dismissed the application for summary dismissal and the application for security for costs, both with costs. The court held that it was arguable that a de facto relationship existed between the plaintiff and the deceased, even though they did not share a common residence, and that the failure to comply with the Court's directions was insufficient to justify an application for security for costs.

Orders