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Zahra v Francica

Zahra v Francica

Case [2009] NSWSC 1206 4 November 2009

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CITATION: Zahra v Francica [2009] NSWSC 1206

HEARING DATE(S): 2 - 4 November 2009

JUDGMENT DATE :
4 November 2009

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ

DECISION: Judgment to the defendant with costs.

CATCHWORDS: FAMILY PROVISION – Claim by former de facto – On the evidence, not an eligible person because the relationship ended during the testatrix’ lifetime – consideration of merits of claim – If an eligible person, no provision would have been ordered. - TRUSTS AND TRUSTEES – Claim by former de facto to be entitled to a resulting trust of a half interest in the testatrix’ house failed for want of credible evidence of a contribution to purchase money.

LEGISLATION CITED: Family Provision Act 1982 s 6(1)

CATEGORY: Principal judgment

CASES CITED: Eggins v Robinson (2000) NSWCA 61
Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
Neilson v Letch [2006] NSWCA 254
Plunkett v Bull (1915) 19 CLR 544
Vandervell v Inland Revenue Commissioners [1967] 2 AC 291

PARTIES: Karmelo Zahra (P)
Charles Paul Francica as Executor of the Estate of Mary Francica (D)

FILE NUMBER(S): SC 6209/06

COUNSEL: J Blackah (P)
J Van Aalst (D)

SOLICITORS: Watson & Watson (P)
John Hertz & Associates (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

WEDNESDAY, 4 NOVEMBER 2009

6209/06 KARMELO ZAHRA v CHARLES FRANCIS FRANCICA as Executor of the ESTATE OF MARY FRANCICA

JUDGMENT

1 HIS HONOUR: In these proceedings the plaintiff makes claims against the deceased’s estate and the facts that he alleges depend for proof very largely upon his own evidence. In approaching his evidence and making findings on a matter he alleges, I bear in mind the need for careful scrutiny to which evidence in such a case should be subjected. This need is well established and was stated clearly by Isaacs J in Plunkett v Bull (1915) 19 CLR 544. Two more modern statements appear in the judgment of McLelland CJ in Eq in Eyota Pty Limited v Hanave Pty Limited (1994) 12 ACSR 785 at 789 in a passage which was cited with approval in the judgment of Sheller JA in Eggins v Robinson (2000) NSWCA 61 at [26]:

“... in a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”

2 A clear re-statement of the principle showing its continuing applicability was made by Sheller JA in Eggins v Robinson, see particularly pars [26] to [28] inclusive. Powell JA agreed with Sheller JA and Meagher JA reached the same conclusion although without referring to these authorities. It should be remembered that as appears in Sheller JA’s par [28] observations in the High Court of Australia in Neat Holdings Pty Limited v Karajan Holdings…

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 Zahra v Francica

Details

AGLC: Zahra v Francica [2009] NSWSC 1206
Case: [2009] NSWSC 1206
Decision Date: 4 November 2009

CaseChat Overview and Summary

The matter involved a claim by a former de facto partner against the estate of the deceased, the testatrix. The dispute centred around whether the claimant was entitled to a share of the estate under the Family Provision Act and whether they were entitled to a half interest in the testatrix' house via a resulting trust. The case was heard in the Supreme Court of New South Wales.

The court was required to determine if the claimant was an eligible person under the Family Provision Act and, if so, whether they were entitled to a provision from the estate. Additionally, the court needed to assess if the claimant was entitled to a resulting trust in the testatrix' house. The central issue was whether the relationship had ended during the testatrix' lifetime, which would disqualify the claimant from being an eligible person under the Act.

The court found that the relationship between the claimant and the testatrix had indeed ended during the testatrix' lifetime. Consequently, the claimant did not qualify as an eligible person under the Family Provision Act. The court also examined the merits of the claim and concluded that even if the claimant were an eligible person, no provision would have been ordered. Furthermore, the court found that there was no credible evidence to support the claimant's resulting trust claim, as the claimant failed to demonstrate a financial contribution to the purchase of the house.

The court dismissed both claims and made orders accordingly. The claimant was not entitled to any provision from the estate, and the claim for a resulting trust was also dismissed. The court's decision was based on the evidence presented and the applicable legal principles.

Orders