Farrance v Pergol

The matter before me is a notice of motion filed by the defendant (Mr Zdzislaw Pergol) on 24 October 2025. The primary proceedings, commenced by a statement of claim filed on 15 May 2025, seek possession of a property in the Sydney suburb of Canley Heights (the property). The plaintiff is Ms Danuta Farrance.

Mr Pergol is the plaintiff in separate proceedings, being an application under Pt 3.2 of the Succession Act 2006 (NSW) for family provision orders. These proceedings were commenced by a summons filed on 11 November 2024 in which Ms Farrance is the defendant.

For convenience I will refer to the parties by their surnames.

The notice of motion seeks an injunction against Ms Farrance taking any steps to sell the property, a stay on any order for possession of the property, and for the family provision and possession proceedings to be heard together.

Both the written and oral submissions of the parties concentrated on the entitlement to an injunction. It was, at least impliedly, accepted that the result of the injunction application would dictate the stay application.

Mr Pergol relies on the following affidavits:

Ms Robinson is a solicitor working for Mr Pergol’s solicitors. Ms Robinson served the notice of motion on the solicitor for the prospective purchaser of the property. The solicitor, Mr Furlan, appeared at the hearing and sought leave to make submissions. There was no objection. I granted leave.

Ms Farrance relies on these affidavits:

Mr Rashed is a solicitor acting for Ms Farrance.

Mr Pergol was born in 1955. He married Ms Valentina Pergol on 6 June 1989. Ms Pergol was the registered owner of the property. She became the sole owner of the property after her (first) husband, Mr Antony Pergol (‘Antony’), died in 1988.

Ms Pergol had two daughters with Antony, Ms Danuta Farrance, and Ms Anna Superina.

Ms Pergol died on 28 September 2023, aged 96. I will now refer to her as ‘the deceased’. The deceased left a will dated 6 March 2012. Under the will the deceased’s estate was divided into three equal shares, the shares going to Mr Pergol, Ms Farrance, and Ms Superina, respectively. However, because Ms Superina had died before the deceased, her share goes to her children.

Ms Superina had been appointed as the executor under the will, with Ms Farrance as the substitute executor. Accordingly, Ms Farrance became the executor. The property is the primary asset of the estate. There is about $9,250 in a bank account.

Probate of the estate was granted to Ms Farrance on 22 June 2024.

Mr Pergol has lived in the property in the property since he arrived in Australia from Poland. He does not have a lease or any other type of agreement entitling him to reside in the property. The will does not give him any interest in the property (as opposed to the estate).

Mr Pergol is a pensioner. He has $150,000 in a term deposit and a small amount in an ‘everyday’ account. He has withdrawn his superannuation and says he could not afford to purchase another property of similar characteristics. The property comprises a free-standing house with a garden. It is unencumbered.

Ms Farrance’s solicitors wrote to the Mr Pergol on 21 October 2024 telling him that Ms Farrance had instructed them to sell the property and that, if it was sold, “you will be required to provide vacant possession at settlement”.

There was no reply to Ms Farrance’s solicitors, but their letter does seem to have prompted the filing of the summons on 11 November 2024.

Ms Farrance engaged a real estate agent on 31 December 2024. Although the property had never been listed for sale on the open market, a purchaser was found and contracts were exchanged on 19 February 2025. The purchase price was $1,675,000.

The contract for the sale of the property contains an extended cooling off period because the purchaser has not been able to gain access to the property for the purposes of applying for a loan for the purchase. The cooling off period has had a number of extensions. It is currently due to expire on 20 April 2026.

According to a valuation obtained by Mr Pergol in March 2025, the value of the property was then between $1,800,000 and $1,900,000.

Going back in time, the deceased married Antony in Germany after the end of the Second World War. Antony was the half-brother of Mr Pergol. They had the same father. Mr Antony Pergol was 28 years older than Mr Pergol.

Antony and the deceased came to Australia in about 1950. As stated above, they had two children, Ms Farrance and Ms Superina.

Antony died in 1988. Following Antony’s death, the deceased informed Mr Pergol of his half-brother’s demise and invited Mr Pergol to visit her in Australia. He accepted the invitation and arrived in Australia in November 1988. He stayed with the deceased at the property.

The deceased was also 28 years older than Mr Pergol. Nevertheless, according to Mr Pergol, he, and the deceased “fell in love”. They married in June 1989. According to Mr Pergol, they lived the normal relationship of a married couple.

This is a convenient point to dismiss any speculation that arises from the specific terms of the deceased’s will. The clause benefiting Mr Pergol states:

The use of the phrase “brother-in-law” as opposed to “husband” might infer a suggestion that the marriage between Mr Pergol and the deceased was not genuine. There is no evidence to suggest the marriage was a sham, for example for immigration purposes. To the contrary, there is an apparently genuine Certificate of Marriage dated 6 June 1989 and Mr Pergol and the deceased lived together in the same household until 2018.

In addition, leaving her estate in equal parts to her two daughters and Mr Pergol, suggests a significant degree of affection for Mr Pergol.

Mr Pergol and the deceased lived together in the property until 2018 when the deceased, due to failing health and mobility difficulties, moved to a nursing home. She died in 2023.

Mr Pergol stayed in the property. He still resides there and wants to stay for the rest of his life. In order to achieve this aim, the purpose of his Succession Act proceedings is to obtain a life interest in the property or at least a ‘Crisp’ order. A Crisp order was described by Ipp JA in Milillo v Konnecke (2009) 2 ASTLR 235; [2009] NSWCA 109 from [47]-[48]:

Mr Pergol seeks a stay of the possession proceedings, that they be heard with the Succession Act proceedings, and that there be an injunction preventing Ms Farrance from taking any further steps to sell the property.

Ms Farrance submitted that granting the injunction would be a “drastic” action, quoting from Frigo v Culhaci [1998] NSWCA 88, at p 6:

The injunction sought here may be described as a Mareva injunction, but it is not one to prevent the dissipation of an asset. The property is not going anywhere. It might be said by Mr Pergol that if the property was sold, Ms Farrance could dissipate the proceeds of sale, but that is not the purpose behind the relief, nor is there a business involved whose activities might descend into havoc. Quite to the contrary the purpose is to “preserve the status quo.”

While I accept that Frigo compels great caution in granting an injunction, its warnings probably favour Mr Pergol as much as Ms Farrance. The parties are however agreed on the principles to be applied in granting an injunction. They were correctly set out in Ms Farrance’s counsel’s written submissions:

It was submitted that the principles behind granting a stay were little different.

Ms Farrance submitted there was a flaw in Mr Pergol’s approach to this question. The serious question to be tried could only relate to Mr Pergol’s quest for a life interest in the property or a Crisp order. It could not relate to an increased share of the estate (beyond a 1/3) because this relief could be easily protected by orders or undertakings in respect of the proceeds of sale.

The problem, according to Ms Farrance, was that the summons in the Succession Act proceedings did not, in the relief claimed, say anything about a life interest or other relief which might enable Mr Pergol to remain in the property. The relief sought only “that further provision be made for the plaintiff’s maintenance, education and advancement in life pursuant to s 59 of the Succession Act out of the estate and/or notional estate of the late Valentina Peregol ...”

Parker J, in Theocharous v Theocharous [2025] NSWSC 45, said, from [52]-[53]:

It followed, submitted Ms Farrance, that if a life interest or a Crisp order was not a constituent part of the summons, then how could there be a serious question about such relief.

Because the summons was an apparently direct reaction to the letter of 21 October 2024, telling Mr Pergol of the intention to sell the property, one would have expected the summons to specifically include relief which would have entitled Mr Pergol to remain in the residence. In addition, since the summons was filed in November 2024, there has been no attempt, or notice given, to amend the summons.

In addition, submitted Ms Farrance, an injunction, or at least an arrangement, should have been requested immediately after the summons was filed in November 2024. By this time Mr Pergol knew of the intention to sell from the letter of 21 October 2024, and he had also spoken on the telephone with Ms Farrance who had told him of her intention to sell the property.

Mr Pergol responded that it was not normal practice in family provision applications to specify the precise relief sought but rather to only seek provision for the plaintiff’s maintenance, education, and advancement in life even if this was to be manifested by a life estate or Crisp order.

I think Mr Pergol’s response was contrary to Theocharous. Black J said at [45]:

His Honour added, at [47]-[48]:

It is very apparent from the terms of s 65 of the Succession Act that a summons which is ultimately seeking a life interest in property should include that relief as part of the relief claimed.

Even if Mr Pergol was correct about the general nature of the description of relief being sought in family provision cases, I think it is a factor which is important. I will return to it below. The failure of Mr Pergol to signal his claim in correspondence and, at least, ask for an undertaking that the property would not be sold pending the outcome of the summons is significant.

In conclusion, on the current question, I am not satisfied that the summons proceedings disclose a serious question to be tried.

The amended defence to the statement of claim alleges an oral agreement between the deceased and Mr Pergol. Under this agreement, when the deceased was about to move into the nursing home she said to Mr Pergol words to this effect: “You will not have to leave. You can stay here and you will always be able to live here. You need to take care of the house and you can stay in it.”

The amended defence pleads that Mr Pergol relied on the above words and, in accordance with them, maintained the property and paid all outgoings.

Although not necessarily excluding the deceased’s words, I note Mr Pergol states in his affidavit of 14 March 2025:

Once again, Ms Farrance submitted, if there was any substance in Mr Pergol’s allegations they should have been included in the summons. One would have also expected that the existence of the promise would have been brought to the attention of Ms Farrance very soon after Mr Pergol received notice of the sale. He does not even seem to have mentioned it in the telephone call he had with Ms Farrance in November 2024. According to his affidavit of 14 March 2025, when Ms Farrance told him that she was able to sell the house, he responded:

At best, Mr Pergol has an uncorroborated oral promise of something that might be interpreted as a life interest. The court would be cautious to accept the promise was made, because obviously, the deceased would not be in a position to contest the statement she allegedly made.

In Ashton v Pratt (No 2) [2012] NSWSC 3, at [18], Brereton J stated:

I cannot discount the possibility that Mr Pergol would be believed but I can classify his prospects of success as weak.

In summary, although not a strong case, I do not think I can say there is not a serious question to be tried in the possession proceedings.

Although not exclusively, I think delay and prejudice to third parties fall within the considerations of the balance of convenience. The overall discretion to award an injunction also plays a part.

I think there has been substantial delay on the part of Mr Pergol. Mr Pergol was first informed of the decision to sell the property by correspondence in October 2024. He did not respond to that correspondence, but obviously consulted lawyers who then filed the summons in November 2024. The filing of the summons might be regarded as a reasonable response to the indication of the intended sale. But, as seen above, the summons makes no mention of a Crisp order or of a life interest and was not joined with a request to Ms Farrance to not sell the house.

At the very least, when the summons was filed, the solicitors for Mr Pergol could have written to Ms Farrance’s solicitors seeking an agreement that the property would not be sold pending the determination of the summons. It is worth noting here that the summons is itself out of time. The limitation period, subject to leave, is 12 months.

Had Mr Pergol’s solicitors sought some agreement, but it was not forthcoming, that would have been the appropriate time to seek the injunction. Costs would have been limited and no contract for sale would have been exchanged.

The next opportunity which might have been taken by Mr Pergol to take action was after he was informed, on 20 February 2025, of the sale of the property. This was another trigger for seeking injunctive relief.

In Scyne Advisory Business Services Pty Ltd v Heaney (2024) 329 IR 461; [2024] NSWSC 275, Parker J said, at [66]-[67]:

I am satisfied there was substantial, and costly, delay on the part of Mr Pergol which mitigates against the granting of an injunction. I say costly because of the expense that has been incurred in bringing the possession proceedings and the costs to the purchasers of the property.

The third-party implications bring me to some aspects of the sale contract which were raised by the parties. Mr Pergol’s counsel submitted that I could not be satisfied that there was a valid contract because there was no evidence of a contract that had been signed by the vendor. The contract in evidence is only signed by the purchasers. I reject this submission. Mr Pergol, in his affidavit of 3 October 2025, specifically states that “the Property exchanged unconditionally.” There is simply no basis on which the submission might rest.

The contract is in standard form and provides for the payment of a 10% deposit. No deposit was paid, but an amount of $4,187.50 was paid by the purchasers to the real estate agent. This amount is 0.25% of the purchase price.

Mr Pergol’s counsel submitted:

A little later the submission continued:

Counsel continued that the cooling off period did not expire until 20 April 2026 and therefore the contract could be rescinded, the only ‘downside’ being the possible loss of the $4,187.50. Mr Pergol offered an undertaking that if, upon rescission, this sum was not returned to the purchasers by the agent, then he would pay it to them.

I agree that the $4,187.50 is not a deposit. I think it plainly arises from the certificate required by s 66X of the Conveyancing Act 1919 (NSW). The certificate states:

The point is of little importance. If the contract was terminated the purchasers would recover the $4,187.50 either from the agent or from Mr Pergol (pursuant to his undertaking).

Mr Pergol, without plainly suggesting underhand dealings, did draw attention to the fact that the contract for sale of the property had been entered into without any inspection of the property by the purchasers, and for a price close to the bottom of the range suggested by the real estate agent. It was also pointed out that the retainer of the real estate agent was signed on 31 December 2024, and then the contracts exchanged on 19 February 2025.

The range of value that had been suggested by the real estate agent was $1,650,000 to $1,770,000. The contract price is closer to the bottom of the range. But it is within the range, and I can see no basis upon which to criticise Ms Farrance for accepting the price offered by the purchasers or for trying to execute the terms of the will with appropriate dispatch.

As for the absence of any inspection, I think it clear that the intent of the purchasers was to redevelop the property and not to use it, as it stood, as a residence. This is apparent from the purchasers’ solicitors telling the real estate agent that “our client has already incurred over $30,000.00 in planning expenses for their future construction project …”

The expenditure of the $30,000 (or more) is an indication of the damages that might flow from the termination of the contract for sale. This amount, plus all of the other expenses and costs associated with the proceedings could fall within a damages claim arising from the termination. Despite his undertaking as to damages, Mr Pergol does not have many resources and payment of damages out of the estate would not be appropriate.

On the subject of prejudice to a third party, the solicitor for the purchasers was permitted to make submissions. No objection was taken to this course.

Mr Furlan, on behalf of the purchasers, took me to some passages from DP World Sydney Ltd v Guy (2016) 262 IR 156; [2016] NSWSC 1072, a decision of White J, at [72]-[75]:

Particular reference was made to [75] in DP World and to the sentence:

Mr Pergol’s counsel submitted that all of the considerations arising from delay and discretionary factors which might favour Ms Farrance, were overwhelmed by Mr Pergol’s interest in his life estate.

He will however receive a one third of the estate, or perhaps more if his Succession Act claim is successful, which would enable him to perhaps purchase an apartment. Mr Pergol’s counsel said that about $500,000 was not enough to purchase an apartment in Canley Heights but provided no evidence to this effect.

I am not satisfied that Mr Pergol has established the basis for an interlocutory injunction. At the very best he has a weak case for the establishment of a life interest in the property, or a Crisp order, and there are a number of discretionary factors which significantly weigh against the grant of an injunction.

I think it follows that if no injunction is granted, there should also not be a stay of the proceedings. No submission was made to the contrary.

In relation to the application for the two proceedings to be heard together, I think there is some merit in that happening, but I think the application is premature. The possession proceedings are apparently not yet ready to take a hearing date, but I was informed that if the injunction was not granted then Ms Farrance would move the court to strike out the amended defence and give her summary judgment, and therefore possession. If that application was unsuccessful, I think that would be the time for the making of a ‘heard together’ order.

There seemed to be general agreement, or at least acquiescence, between Mr Pergol and Ms Farrance, that if Mr Pergol lost, costs should be costs in the cause in these (the possession) proceedings. I think that is the appropriate order.

The purchasers sought their costs from Mr Pergol. The purchasers appeared by leave and without resistance from Mr Pergol. I think the purchasers should pay their own costs.

I make the following orders: