Katramados v Hasapis (No 5)

1. [1]

   This should be the final judgment in these proceedings dealing with the distribution of the estate in New South Wales (the NSW estate) of the late Nicholaos (Nicholas) Kalantzis (the deceased), who died on 26 December 2014 in Greece at the age of 96 years.

First judgment

1. [2]

   I published the first judgment in these proceedings on 22 June 2018: Katramados v Hasapis [2018] NSWSC 948.

2. [3]

   Because of the number of judgments that have been published, and the complexity of the issues, it will be necessary for the Court to assume that the reader has a knowledge of all of the judgments. I will generally use the same terms in these reasons as I have used in the other judgments. For convenience, and without meaning any disrespect, I will refer to the parties by their first names.

3. [4]

   As was explained in the first judgment, the deceased left a final Greek will that had the effect that, apart from a gift of a substantial part of his assets in Greece to his stepdaughter Maria, the daughter of the deceased's wife, the plaintiff Julia, the deceased died intestate in respect of the balance of his estate in Greece (the Greek estate) and New South Wales.

4. [5]

   So far as is presently relevant, the primary issues dealt with in the first judgment involved claims by the second defendant, Adriana, and the fourth defendant, Billy, for further family provision under s 59 of the Succession Act 2006 (NSW), instead of the shares that they would receive in the NSW estate on the deceased’s intestacy. The parties also invested significant forensic effort in exploring issues of Greek and New South Wales probate law in relation to the effect of various wills made by the deceased. However, at the beginning of the hearing, the Court was invited to make an order revoking the grant of probate that had been made by the Court to Despina of a will made in this State by the deceased. The Court subsequently made an order appointing Mr Gordon Salier (the Administrator) as the administrator of the deceased’s NSW estate.

5. [6]

   In the first judgment, after completing the necessary analysis of the evidence and the issues that were raised, I made the following observations, in order to gather together the salient matters relevant to the determination of the applications for further family provision:

6. [7]

   I found that it would be necessary for the Campsie property in which Adriana and her mother, the deceased's first wife, were living, as well as the Dulwich Hill property, in which Billy was living, to be sold so that the deceased's assets in this State could be distributed. That was an unfortunate but necessary course, whatever conclusion the Court reached in relation to the applications for further family provision made by Adriana and Billy.

7. [8]

   I expressed the conclusion, at [291] of the first judgment, that I was satisfied that the evidence established that the provisions made for Adriana and Billy under the intestate estate of the deceased were not adequate for their proper maintenance, education or advancement in life for the purposes of s 59(1)(c) of the Succession Act.

8. [9]

   In subsequent paragraphs of the first judgment I explained my reasons for reaching this conclusion.

9. [10]

   The first judgment then concluded as follows:

10. [11]

    The conclusions that I reached in the first judgment depended on a number of findings of fact that were supported by the evidence that the parties had put before the Court. The primary findings were as to the value of the Greek estate that was available for distribution to the parties under Greek law, the realisable value of the NSW estate, and the parties’ costs of conducting these proceedings. In the time since the first judgment was published, evidence has been provided to the Court that shows that some of the primary findings were incorrect. To some extent, all of the active parties in these proceedings were responsible for the Court having expressed conclusions in the first judgment that are not now supportable.

11. [12]

    The purpose of this fifth judgment is to finally deal with the consequences of the developments since the first judgment that have required the Court to reassess the orders that can now practicably be made on Adriana’s and Billy’s family provision applications.

12. [13]

    I have attempted in this judgment to explain the reasons for the change of position that has been forced on the Court. That process will include the identification of various changed circumstances and explanations of how those changes lead to the orders that I will foreshadow below. Many of those explanations will involve mathematical adjustments that appear to suggest financial precision measured in dollars and cents. That appearance is in reality illusory, because in the end the Court must apply the evaluative process and the broad discretion reposed in it by s 59 of the Succession Act. However, I have retained the explanations of how particular changes in circumstances require the adjustment of conclusions expressed in the first judgment, in order to provide a rational framework for the process of moving from the expectations created by the first judgment to the orders that the real circumstances now permit the Court to make.

Second judgment

1. [14]

   Following a further hearing that took place on 4 July 2018, I published my second judgment in these proceedings on 26 October 2018: Katramados v Hasapis (No 2) [2018] NSWSC 1604. For the reasons explained in the second judgment, it was still not possible to resolve all of the outstanding issues in the proceedings.

2. [15]

   In relation to the parties' legal costs that should be payable out of the deceased's estate, I considered those claims in the second judgment as a matter of principle as follows: Julia at [48] to [57]; Despina at [58] to [71]; Adriana at [72] to [75]; Mary at [76] to [78]; and Billy at [79] to [81]. In short, I had insufficient information to make final decisions about the amount of the parties’ costs that should be ordered to be paid out of the deceased’s estate.

3. [16]

   The simplest way to explain the position reached as a result of the second judgment is to set out the orders that I made on 13 December 2018 as a result of the second judgment:

4. [17]

   The Court made orders 10 and 11 in relation to the Campsie property and orders 18 and 19 in relation to the Dulwich Hill property because the Court had been informed that there was a prospect that Adriana and Billy would be able to buy the properties in which they were living, so the orders permitted those parties to apply their shares in the estate of the deceased towards the purchase prices, if they were successful at the auctions. Those arrangements gave Adrianna and Billy an opportunity to purchase their homes, while ensuring that the deceased’s estate received proper prices for the properties.

Third judgment

1. [18]

   Following a further hearing on 20 February 2019, I published my third judgment on 18 April 2019, Katramados v Hasapis (No 3) [2019] NSWSC 435.

2. [19]

   At [31] to [42] of the third judgment, I considered a number of developments that had come to the attention of the Court concerning the difficulties involved in realising the Greece estate. I then set out my conclusions concerning the effect of the new evidence as follows:

3. [20]

   In essence, the Court formulated its conclusions in the first judgment on the basis that the evidence then available suggested that the deceased’s Greek estate could be realised in a time frame that was at least reasonable, having regard to the processes of the Greek court. That basis was undermined by evidence that the Greek assets could not be realised until taxes payable to the Greek government had been dealt with, and Mary had advised that she would not consent to the assets being sold, as she wished to retain her one quarter share for sentimental reasons that arose out of her Greek heritage. The principal effect of this change in circumstances was that it would no longer be just for the Court to make family provision orders in favour of Adriana and Billy out of the NSW estate on the basis that Julia could fairly be compensated by being given their rights to the Greek estate.

4. [21]

   I then reviewed the additional information that had been provided to the Court for the purpose of resolving uncertainties that had been discussed in the second judgment, as follows: Julia at [50] to [58], Despina at [59] to [75], Adriana at [76] to [88], Mary at [89] to [98], and Billy at [99] to [103].

5. [22]

   Then, at [106] of the third judgment, I set out what I found to be a more reliable estimate of the total costs that will be payable out of the NSW estate than was previously possible, based upon my further consideration of the costs claims, in the following terms:

6. [23]

   At the end of the third judgment I advised the parties of the orders that I then proposed to make in the following terms:

7. [24]

   My Associate received some communications in response to the direction in [116(11)].

8. [25]

   On 26 April 2019, Mary advised the Court that she wished to retain her one fourth interest in the Greek estate. Mary was of the view that, because of the nature of the property and the economic situation in Greece, there was no market for the sale of the property. However, Mary would be prepared to join with the other parties to authorise the sale of the balance of the Greek estate, excluding her share. Mary had not yet received advice about her taxation liabilities in relation to her share of the Greek estate, but she would in due course satisfy her own taxation liabilities. Mary does not intend to require any other party’s costs to be taxed. Mary preferred that the applications for further family provision made by Adriana and Billy be dealt with on the basis of the information then available to the Court, rather than waiting until the Court had evidence of the actual realised net value of the NSW estate after allowing for the parties’ and the Administrator’s costs.

9. [26]

   Billy advised the Court on 1 May 2019 that he would join with the other parties in authorising the sale of the Greek estate, that he was unaware of any taxes being owed by him, that he did not require costs orders made in favour of any other party to be assessed, and that he preferred the Court to decide the family provision applications on the basis of information then before the Court.

10. [27]

    Billy also provided information that he had incurred the following additional costs in responding to Julia’s probate claim; being senior counsel’s fees of $25,000, Jr counsel’s fees of $15,300 and solicitor’s costs of $9,000. The significance of this additional information is not entirely clear. As stated at [99] of the third judgment, Billy had simply claimed that the Court should make a gross sum costs order in his favour in the amount of $120,000. That was on the basis that $120,000 was a reasonable discount from a significantly larger amount of costs incurred that Billy had not quantified in detail.

11. [28]

    On 2 May 2019, Julia advised the Court that she was also prepared to join with the other parties who were interested in authorising the sale of the Greek estate. Julia was also not aware of any taxes payable in respect of that estate. Julia does not require the costs orders made in favour of any other party to be taxed. However, Julia stated a preference for the final orders for provision to be made following the sale of the NSW estate and following the total costs of the parties having been paid.

12. [29]

    Neither Despina nor Adriana responded to my request for the further information referred to above.

13. [30]

    I formed the view, on the basis of the information then available, that it would be necessary for the Court to disregard the parties’ interests in the deceased’s Greek intestate estate for the purpose of determining the applications for further family provision. Apart from the fact that Mary had not offered to authorise the sale of all of the Greek assets, the absence of any clear information concerning the taxes payable in respect of those assets, or any mechanism for ensuring that the taxes were paid, prevented the Court from making any reliable forecast concerning the future of the Greek estate. In practical terms, this meant that the Court should treat Julia, Adriana, Mary and Billy as being entitled to share equally in the Greek estate, in circumstances where the value of those interests and the time that they may be realised are completely unknown.

14. [31]

    As the parties who did respond advised the Court that they would not require any costs orders to be assessed, and as the other parties did not favour the Court with a response, I decided to proceed on the basis that the costs orders that were ultimately made would be on the basis of the payment of gross sums for costs under s 98(4) of the Civil Procedure Act 2005 (NSW). That is the appropriate course, even though it has not received the unanimous consent of the parties. It has the benefit that whatever family provision orders can be made will be made upon the basis of certainty as to the available estate. It will also avoid further disputation on the issue of costs. It will be as clear as can be from the content of these reasons that the proceedings simply must be ended.

15. [32]

    Given that there was no unanimity concerning the information upon which the Court should rely for the purpose of making final family provision orders, I decided that the best course was for the Court to wait until after the NSW estate had been sold and all costs of the administration and these proceedings were known.

Fourth judgment

1. [33]

   My fourth judgment was published on 5 July 2019, following a hearing on 1 July 2019: Katramados v Hasapis (No 4) [2019] NSWSC 846. By that judgment, I made the following orders:

2. [34]

   It was necessary for the Court to make those orders because Adriana and Billy resisted giving up possession of the properties to the Administrator so that he would be in a position to sell them.

Possession of properties

1. [35]

   On 24 January 2020, Adriana filed a notice of motion, which she had prepared herself without apparent legal assistance, by leave of Henry J sitting as Vacation Judge. Adriana sought orders “restraining the threatened seizure and disposal” of the Dulwich Hill and Campsie properties on the ground that the orders upon which the Administrator’s powers were based “were obtained by fraud and deception”. Adriana also sought orders “to protect and to preserve whole and in its entirety the property of the deceased” subject to the order of a specified Greek court. Finally, Adriana sought an order requiring the Administrator and his solicitor “to cease vexatious actions purporting without authentic vested power or appropriate authority to disturb the estate of Nikolaos Kalantzis”.

2. [36]

   On 28 January 2020, Henry J made an order staying execution of a writ for possession of the Campsie property that was going to be executed that day, up to and including 10 February 2020. It appears that this order was subsequently vacated by her Honour, but the detail is not clear.

3. [37]

   On 14 February 2020 I made the following orders:

4. [38]

   On 3 March 2020, I made case management orders for the hearing of Adriana’s notice of motion, and gave leave to the Administrator to file a notice of motion seeking an order that any person holding the certificate of title to the Campsie property deliver it up to him.

5. [39]

   Further case management orders were made on 5 May 2020, and Adriana’s notice of motion was set down for hearing on 4 June 2020.

6. [40]

   On 4 June 2020, following a hearing of Adriana’s notice of motion, at which she represented herself, I made the following orders:

Administrator’s affidavit

1. [41]

   The Administrator made an affidavit on 22 April 2021, in which he made a report to the Court concerning the progress of his administration of the NSW estate in accordance with the various orders that had been made by the Court over time.

Proceeds of sale of the Campsie property

1. [42]

   The sale of the Campsie property was settled by the Administrator on 22 May 2020. As was explained in the first judgment, the deceased and Julia owned the Campsie property in equal shares.

2. [43]

   Out of the proceeds of sale of the Campsie property, the Administrator deducted a total of $62,984.95, being for counsel's fees of $5,874, solicitors' costs of $33,598.45 and administrator's fees of $23,512.50 incurred in the sale of the Campsie property. After payment to Julia of her half share of the net proceeds of sale, the Administrator retained a net amount of $532,912.66, being the deceased's estate's share of the proceeds of sale of the Campsie property. The amount paid to Julia was also $532,912.66.

3. [44]

   The Administrator therefore received from the sale of the Campsie property $1,128,810.27 net of external selling costs. Although that amount was reduced by the Administrator’s own remuneration and costs of $62,984.95, a considerable proportion of that expense was caused by Adriana’s resistance to the sale. The only amounts that should ultimately be deducted from the Administrator’s net receipt are the costs that he would have had to meet in any event as a result of the administration of the NSW estate without Adriana’s resistance, and some portion of his future costs to complete the administration.

Proceeds of sale of Dulwich Hill property

1. [45]

   The sale by the Administrator of the Dulwich Hill property was settled on 31 March 2021. The amount received by the Administrator net of external selling costs was $1,168,046.74

2. [46]

   The Administrator has sought leave to deduct fees in relation to his administration of the deceased's estate in the sale of the Dulwich Hill property of $84,978.50, being counsel's fees of $5,214, solicitor's fees of $37,656.46 and administrator's fees of $42,108.04.

3. [47]

   After the deduction of these fees, the net amount retained by the Administrator as part of the NSW estate from the sale of the Dulwich Hill property will be $1,083,068.24.

4. [48]

   The same observations can be made about the reduction in the net receipt by the Administrator from the sale of the Dulwich Hill property as a result of Billy’s resistance to the sale as were made above at [46] concerning the Campsie property.

Value of NSW estate before payment of costs of proceedings

1. [49]

   Therefore, as at the date of the administrator's 22 April 2021 affidavit, the likely distributable estate of the deceased in respect of the NSW estate was $1,615,980.90, before the deduction of the costs of these proceedings payable out of the estate.

2. [50]

   The Administrator stated in his affidavit that his further costs related to final distribution of the estate would be $5,550, being counsel's fees of $550, solicitor's fees of $2,500, and the Administrator's fees of $2,500.

3. [51]

   On that basis, as the Administrator is entitled to the remuneration and costs that he has claimed, the distributable NSW estate of the deceased before the deduction of legal costs was expected to be $1,610,430.90.

Costs of obtaining possession of properties

1. [52]

   In his 22 April 2021 affidavit, the Administrator noted that there may be some costs to be recouped to the NSW estate on account of costs orders previously made, including the order made on 14 February 2020 that Billy pay the Administrator’s costs of the notice of motion filed by Billy on 20 January 2020. The Administrator also noted that he has paid out of the NSW estate the costs associated with the issuance and execution of the writs for possession that were necessary because Adriana and Billy did not comply with order 4 made on 5 July 2019, requiring Adriana to give the Administrator possession of the Campsie property, and order 3 made on 14 February 2020, requiring Billy to give the Administrator possession of the Dulwich Hill property.

2. [53]

   I have reviewed the detailed tax invoices prepared by the Administrator and the counsel and solicitors that are annexed to the Administrator’s 22 April 2021 affidavit. I see no reason why the Administrator should not be entitled to the remuneration and costs claimed for conducting the administration. Although some part of the Administrator’s remuneration and costs would have been incurred if Adriana and Billy had complied with the Court’s orders, and not resisted them, it is clear that a substantial proportion of the remuneration and costs was only incurred because of that lack of compliance and resistance.

3. [54]

   Consistently with the costs order made against Billy on 14 February 2020, I am satisfied that justice requires that Adriana and Billy both be ordered to bear personally out of their shares in the deceased’s NSW estate the Administrator’s costs and expenses that he would not have been incurred if Adriana and Billy had cooperated with the Administrator.

4. [55]

   The Administrator has not provided evidence dividing the remuneration and costs that would have been incurred by him in the ordinary administration of the NSW estate as a result of the need to sell the Campsie and Dulwich Hill properties, and the remuneration and costs that have only been incurred by the Administrator to overcome Adriana’s and Billy’s resistance to the properties being sold. Although I could direct the Administrator to provide a report to the Court as to how the division should be carried out, I do not think it is in the interests of the parties to put the deceased’s estate to the expense of this exercise, or to risk increasing the parties’ legal costs as a result of argument about the reasonableness of the report. I propose to proceed upon the basis of the following estimates of the amounts of the Administrator’s legal costs that Adriana and Billy should be ordered to pay for their failed attempts to resist the sale of the properties.

5. [56]

   Before I make final orders in the proceedings, I will give the parties a right to challenge this approximation. They should exercise the right in the knowledge that I will order any party who unreasonably prolongs the proceedings to pay the costs of the Administrator and the other parties on the indemnity basis.

6. [57]

   I propose, as an approximation, to assess the costs that Adriana and Billy should be ordered to pay for resisting the sale of the properties in the following way. I will assume that 30% of the Administrator’s remuneration and costs related to the sale of the properties, and so are proper expenses of the administration of the deceased’s NSW estate. I will then allow 80% of the remaining 70% as the costs payable by Adriana and Billy to the Administrator on the ordinary basis. That is the same approach as I adopted at [106] of the third judgment (see [24] above). On that basis, $35,271.51 will be payable out of Adriana’s share in the NSW estate, and $47,587.96 will be payable out of Billy’s share. The total is $82,859.47.

Julia’s additional costs

1. [58]

   It is then necessary to deal with a submission made by Julia that the Court should order that she should be paid the additional costs that she has incurred as a result of the need to respond to the resistance of Adriana and Billy to cooperating with the Administrator in the process of selling the Campsie and Dulwich Hill properties. Julia claims $41,964.20 in respect of the Campsie property, being counsel’s fees of $15,785 and solicitor’s fees of $26,161.20. The amount claimed in respect of the Dulwich Hill property is $22,104, made up of counsel’s fees of $3,300 and solicitor’s fees of $18,804.

2. [59]

   Julia’s additional claim raises a difficult question. It was the duty of the Administrator to administer the deceased’s NSW estate and the Administrator has performed that task competently and efficiently. The Administrator would have achieved the sale of the Campsie and Dulwich Hill properties if Julia had done nothing that involved her in incurring additional legal costs and disbursements. Notwithstanding that observation, I accept that Julia had a legitimate interest in monitoring the actions of the Administrator and in being represented in Court as a party to any notice of motion, and for the purpose of directions hearings that have taken place from time to time. I also do not forget that Julia’s counsel has taken the lead and assisted the Court to navigate its way through these protracted proceedings.

3. [60]

   It would not be just to require Adriana and Billy to pay Julia’s additional costs personally out of their shares in the deceased’s estate, as that would involve them in being required to pay the legal costs of two parties when they should only be required to pay the costs of one.

4. [61]

   There may be a justification for increasing the allowance for Julia’s costs to be paid out of the estate, as I accept that the conduct of Adriana and Billy has in fact increased the costs that she has been required to incur. The problem is that the total claim of $64,069.20 is too large for the Court to simply accept it as being reasonable. As will be seen below, the orders that I propose to make to bring these proceedings to an end will have the effect that whatever additional costs the Court orders should be paid out of the NSW estate to Julia will reduce the amount that she will receive by way of distribution from the estate. That is because Julia will receive the balance after all other lump sums and costs are paid out of the estate. It is therefore not in Julia’s interests to cause delay or incur costs in the process of more accurately determining an amount that Julia should be paid out of the NSW estate for her costs of ensuring that the properties could be sold by the Administrator. To enable me to complete these reasons, I will assume that Julia is allowed a further $25,000 out of the NSW estate for these costs.

5. [62]

   However, I will give Julia the opportunity to challenge this approach on the same basis as I have set out at [56] above.

Comparison between actual and assumed NSW estate

1. [63]

   It will now be necessary for the Court to compare the ultimate state of the deceased’s NSW estate after the realisation of its assets and the payment of all costs with the assumptions made at [289] of the first judgment that are set out above at [8].

2. [64]

   That is necessary because the Court is still required to decide what family provision orders should be made in favour of Adriana and Billy, now that the final position of the estate is known with some certainty.

3. [65]

   The Court must have regard to the reasons stated and conclusions reached in the first judgment, even though they were necessarily provisional because of the overall doubts about the size of the deceased’s distributable intestate estate. All parties to some extent have subsequently conducted themselves on the basis that the conclusions reached in the first judgment would form the basis upon which orders were ultimately made in the proceedings.

4. [66]

   However, as I have explained above, the revelation after the first judgment was delivered that the Court cannot rely on Julia receiving Adriana’s and Billy’s shares in the deceased’s Greece estate has substantially undermined the logic of the Court giving Adriana and Billy the major part of the deceased’s NSW estate, on the basis that Julia would be compensated by being given an entitlement to the shares of Adriana and Billy in the Greek estate.

5. [67]

   By reference to [289(6)], this Court must now assume that Julia, Mary, Adriana and Billy are nominally entitled to a share of the Greek estate valued at $172,728.61 each, but it cannot be known whether that value can be realised, when it can be realised, and whether it is subject to payment of a significant amount of tax to the Greek government. No other course is available but to leave it to each party to pursue their entitlement under Greek law.

6. [68]

   It was assumed at [289(8)] of the first judgment that Julia would receive an estimated $625,000 as her half share in the net proceeds of sale of the Campsie property. The amount actually paid to Julia was $532,912.66, a shortfall of $92,087.34.

7. [69]

   At [289(14)] of the first judgment, I recorded my assumption that the value of the NSW estate was $1,900,000. That amount was calculated on the basis that the deceased’s half share in the Campsie property was worth $625,000 and the Dulwich Hill property was worth $1,275,000. In fact, the Administrator has retained $532,912.66 from the sale of the Campsie property and $1,083,068.24 from the sale of the Dulwich Hill property. The total of $1,615,980.90 is $284,019.10 less than what was assumed in the first judgment.

8. [70]

   The evidence in the hearing that led to the first judgment suggested that the legal costs that will have to be paid out of the estate were $500,000, which would give a distributable estate of $1,400,000. In fact, as was estimated at [106] of the third judgment (set out above at [24]), the total costs will be $721,976.19, plus any adjustments that are made as a result of these reasons.

9. [71]

   It will be appropriate to make a number of adjustments to the estimate of $721,976.19. As explained above, I have estimated that Julia will be entitled to an additional $25,000 out of the NSW estate (although that amount may be increased as a result of Julia’s submissions). The Administrator will be entitled to be paid a further $5,550 (although that amount may increase somewhat as a result of additional work the Administrator may be required to do).

10. [72]

    In the table at [106] of the third judgment I allowed Billy’s costs at $120,000. That was done because Billy had not provided evidence of his total costs but had sought a gross sum costs order for $120,000 on a simplified basis. Billy’s former solicitor has now provided evidence that the total costs actually incurred by Billy were $163,419.50. Fairness requires that I assess Billy’s costs on the same basis as the costs of other parties, which means that I should allow 80%, as Billy’s costs will be payable out of the estate on the ordinary basis. I will therefore allow Billy’s costs at $130,735.60.

11. [73]

    No party has objected to the Court making cost orders on the basis of the estimates included in the table at [106] of the third judgment, and those parties who have indicated their position have informed the Court that they do not wish costs orders made in favour of other parties to be assessed. On that basis, orders will be made for the payment of the parties’ costs out of the estate as follows (subject to the possible further minor adjustments discussed above):

12. [74]

    The estimated value of the NSW estate will therefore be $1,615,980.90 (from [49]) less Administrator’s outstanding costs of $5,550 (from [50]) less estimated legal costs payable to parties of $757,711.79 (from [73]) plus total costs payable out of Adriana’s and Billy’s shares in the NSW estate of $82,859.47 (from [57]), giving $935,578.58. That amount is $464,421.42 less than the amount of the distributable NSW estate that was estimated in [289(15)] of the first judgment (see [8] above).

Effect of agreement between Adriana, Billy and Mary

1. [75]

   As was explained in the first judgment at [48], Adriana and Billy reached an agreement with Mary before the hearing that they would not seek to throw the burden of any family provision orders made in their favour onto Mary’s share of the estate.

2. [76]

   Section 65(1)(c) of the Succession Act requires the Court, when making a family provision order, to specify “the manner in which the position is to be provided and the part or parts of the estate out of which it is to be provided”. As the beneficiaries of the NSW estate are entitled on intestacy, it seemed to me to be just that the other beneficiaries should bear any family provision orders made in favour of Adriana and Billy rateably, were it not for the agreement. That means that it would not be fair to Julia for the Court to determine the amounts of any lump sum payments that should be made to Adriana and Billy, and then impose those payments on the share of the NSW estate that Julia would otherwise have received.

3. [77]

   The proper approach would be to first determine the proportions of the payments that Julia and Mary would have borne if the payments had been shared rateably, and then calculate Mary’s proportions of the lump sum payments to be made to Adriana and Billy. The amounts of the lump sum payments would then be reduced by Mary’s proportions to give effect to the agreement that the effect of the family provision orders would not be thrown on Mary’s share of the NSW estate. The consequence would be that Julia would only bear the proportion of the lump sum amounts payable to Adriana and Billy that she would have borne in the absence of the agreement.

4. [78]

   At [261] and [264] I set out my reasons for determining that Julia and Mary should bear any lump sum payments in excess of Adriana’s and Billy’s shares in the NSW estate on intestacy in the ratio of 5 to 1.

5. [79]

   In principle, it is necessary to recalculate Mary’s share in the NSW estate taking into account the changed amounts of the value of that estate and the costs that will have to be paid out of it that are discussed above. That calculation requires a determination of Julia’s share in the total value of $1,615,980.90, which is, under s 113 of the Succession Act, the statutory legacy of $487,723 and one half of the remainder of the NSW estate. That amount is $1,051,851.95. Mary would have been entitled under s 127 to one third of the balance of the estate of $564,128.95. That amount is $188,042.98, which is 11.64% of the total value (say 11.5%).

6. [80]

   On the assumption that all of the beneficiaries should bear the legal costs proportionally to their entitlements, Mary’s share of legal costs of $757,711.79 would be $88,179.65. Consequently, the amount that should be distributed to Mary out of the NSW estate, after allowing for legal costs, but not bearing any part of the family provision orders made in favour of Adriana and Billy is $99,863.33.

7. [81]

   As, in the absence of any family provision orders being made, Adriana and Billy would be entitled to the same shares in the NSW estate as Mary, after payment of legal costs Adriana and Billy would also be entitled to $99,863.33 each. If the Court makes family provision orders that increase Adriana’s and Billy’s shares, those increases will have to be borne by Julia’s and Mary’s shares in the NSW estate.

8. [82]

   The result of these considerations is that the Court must first determine the amount of any increase in provision for Adriana and Billy in addition to the $99,863.33 to which they are already entitled and then to reduce the amount of that increase by 11.5% (see [79] above).

9. [83]

   It must be recognised that, although these consequences of the agreement between Adriana, Billy and Mary remain logically sound, their actual significance will be diminished because the amount of the NSW estate that is available for distribution is significantly less than was believed at the time of the first judgment. Furthermore, because the assessment of the amount of the lump sum payment that must be made under s 59 of the Succession Act remains a discretionary one, the process of giving effect to the agreement will involve reducing a discretionary number by 11.5%. To that extent, the appearance of mathematical certainty of the exercise is to a degree illusory. It remains true, however, that the Court should make an adjustment to the family provision orders made in favour of Adriana and Billy to take into account the existence of the agreement.

Determination of family provision orders

1. [84]

   Given all that is now known by the Court, the question is whether, out of a distributable estate of $935,578.58, the Court should order that Adriana and Billy receive legacies greater than $99,863.33. Any increase payable to Adriana and Billy will lead to a decrease in the $635,988.59 that would be payable to Julia out of the NSW estate after the payment of the parties’ costs. Mary will still be entitled to receive $99,863.33.

2. [85]

   It must be remembered that, in determining the net amounts that Adriana and Billy will receive in their hands, the calculations made above assume that the Administrator will retain $35,271.51 out of Adriana’s share and $47,587.96 out of Billy’s share to satisfy their obligations to pay part of the legal costs caused by their resistance to giving possession of the properties to the Administrator.

3. [86]

   To put this question in its proper perspective, putting aside the costs that the parties have incurred as a result of the probate aspect of the proceedings, and the relatively minor costs of administration that would have been incurred if Adriana and Billy had cooperated with the Administrator, if Adriana and Billy had not made their family provision applications, Julia would have been entitled to receive $1,051,851.95 and Adriana, Mary and Billy would have been entitled to $188,042.98 each.

Evidence at the hearing of value of Greek estate

1. [87]

   It is necessary to understand the difference between the circumstances of the Greek estate as they were understood at the time of the first judgment and the reality that has subsequently emerged. The first judgment contained the following paragraphs concerning the Greek estate:

2. [88]

   The significance of this part of the first judgment is that Julia asserted that the Greek estate had the value of $690,914.43 referred to at [289(6)] that is extracted above at [8]. It was primarily on that basis that I found in principle that substantial legacies could be ordered to be paid to Adriana and Billy out of the NSW estate in return for the transfer to Julia of the entitlement to receive Adriana’s and Billy’s shares in the Greek estate. It was Adriana who cast doubt on the ability of the Greek estate to be realised. However, if I had accepted Adriana’s submission, which was not supported by any evidence, I could not have made the family provision orders sought by Adriana and Billy. It has turned out that Adriana was right. In retrospect it is extraordinary that none of the parties adequately investigated the realisable value of the Greek estate.

3. [89]

   I observed at [289(18)] of the first judgment that Adriana’s and Billy’s claims for lump sum payments of $1,525,000 in total could not be met out of the NSW estate, then expected to be worth $1,212,500. At [326], I stated the conclusion that, if the whole of the $1,900,000 value of the deceased’s property in this State had been available for distribution without deduction, it would have been warranted for the Court to make family provision orders in favour of Adriana and Billy by way of lump sum payments in the amounts of $700,000 and $750,000 respectively. That was clearly a theoretical conclusion at the time it was made, because the Court understood that a substantial but then unknown amount of legal costs would be payable out of the NSW estate, and the uncertainty concerning the value of that estate remained. That is why no actual family provision orders were made at the time.

4. [90]

   The Court now knows that the distributable NSW estate is $935,578.58, and the Court is obliged to ignore the value of the Greek estate, other than to hope that the beneficiaries will eventually gain some benefit from it.

5. [91]

   In these circumstances it would be neither fair nor reasonable for the Court to start with the legacies sought by Adriana and Billy and to scale those legacies downwards to fit the distributable NSW estate. That course would lead to the unjustifiable result that Julia, the deceased’s wife of 43 years, would be excluded from any real benefit from the NSW estate.

6. [92]

   Furthermore, it is now known that there is no way that the Court can order that lump sums be paid to Adriana and Billy that would enable them to buy a home each. The most that can be done is to order that Adriana and Billy receive lump sum payments that will provide them with a relatively small fund to meet contingencies.

7. [93]

   The Court must also take into account that, as a result of these proceedings Julia will have to bear the lion’s share of the legal costs.

8. [94]

   Having regard to all of the considerations discussed in the various judgments that have been delivered, I have concluded that the proper course will be to order that Adriana and Billy receive lump sum payments of $235,000 each out of the NSW estate, subject to the adjustments referred to below.

9. [95]

   I explain the figure of $235,000 as follows. At this stage it is appropriate to abandon illusory precision in the calculation. I started with the decision that $250,000 each would be a proper amount of the lump sum payable out of the NSW estate to each of Adriana and Billy. That is $150,000 greater than the amounts that each beneficiary would receive on an intestacy. 11.5% of $150,000 is $17,250. Rounding that amount, the lump sum in each case should be $235,000.

10. [96]

    That means that after Mary receives her $99,863.33 share of the distributable NSW estate, Julia will be entitled to receive $365,715.25.

11. [97]

    The administrator will be authorised to retain $35,271.51 out of Adriana’s lump sum and $47,587.96 out of Billy’s lump sum. That step is necessary because it is assumed to have occurred in the calculation of the distributable NSW estate at $935,578.58.

12. [98]

    Consequently, Adriana will receive $199,728.49 and Billy will receive $187,412.42. Those amounts may be compared with the $188,042.98 that each beneficiary would have received if their family provision claims had not been made.

Billy’s solicitor’s claim for payment of costs owed by Billy

1. [99]

   Billy’s solicitor filed an affidavit made on 15 September 2021, in which she stated that she is the former solicitor for Billy, and that despite being requested to do so, Billy has refused to sign any authority for costs or direction to pay costs to her firm. Billy has paid no costs to his former solicitor. On 8 September 2021, the solicitor wrote to the Administrator to inform him that she claimed a lien for her costs in the full amount of $163,419.50 over any sum to which Billy may become entitled as a result of orders made by the Court in these proceedings. By letter dated 10 September 2021 to the Administrator, the solicitor advised that she claimed in addition an entitlement to interest of $28,478.43, so that the total amount of the claim is $191,897.93.

2. [100]

   On 14 September 2021, the Administrator responded by his solicitor to advise Billy’s former solicitor that he could not pay to her the amount claimed out of Billy’s share in the deceased’s NSW estate without an order of the Court authorising him to do so. In the absence of such an order, the only course available to the Administrator would be to pay Billy’s share of the estate into Court so that the respective entitlements of Billy and the former solicitor to the amount could be determined in a proper manner.

3. [101]

   As Billy is no longer legally represented and has not responded to his former solicitor’s claim, the only course that is available to deal with that claim is for the Administrator to pay Billy’s share in the deceased’s estate into Court so that Billy and the former solicitor can make such applications in relation to the disbursement of the money as they may wish to make.

Draft orders

1. [102]

   I will now set out draft orders that I propose to make to complete these proceedings.

2. [103]

   I accept that there is a possibility that I may have misunderstood the detailed effect of some of the evidence concerning amounts, or that my reasons may involve errors of a mathematical nature. The parties and the Administrator may make submissions concerning amendments to the proposed orders directed at correcting conceptual errors. The parties and the Administrator may also make submissions concerning the form of the proposed orders and whether any necessary orders have been omitted. It must be understood that the Court must make final orders as soon as possible on the basis of minimal additional disputation between the parties.

3. [104]

   Submissions may also be made as to the proper assessment of the costs payable by Adriana and Billy to the Administrator and the additional costs that should be payable to Julie at out of the NSW estate: see [56] and [62] above.

4. [105]

   Any submissions by the parties should be provided to my Associate within 28 days of the publication of these reasons for judgment.

5. [106]

   The proposed orders of the Court are as follows:

   1. (1)

      Order that in lieu of the amount payable to the second defendant on an intestacy of Nicholaos (Nicholas) Kalantzis (the deceased) out of the deceased’s estate in New South Wales, the second defendant be paid a lump sum of $235,000.

   2. (2)

      Order that in lieu of the amount payable to the fourth defendant on an intestacy of the deceased out of the deceased’s estate in New South Wales, the fourth defendant be paid a lump sum of $235,000.

   3. (3)

      Note that the third defendant remains entitled to the amount payable to the third defendant on an intestacy of the deceased out of the deceased’s estate in New South Wales, which is declared to be in the amount of $100,000.

   4. (4)

      Note that the plaintiff is entitled to the balance of the deceased’s estate in New South Wales after payment of the lump sum amounts referred to in Orders 1 to 3, the legal costs and Administrator’s remuneration and costs to be payable out of the deceased’s estate in accordance with the following orders.

   5. (5)

      Orders that the amounts referred to in orders 1 to 4 be paid out of the proceeds of sale of the deceased’s estate in New South Wales that is in the hands of the Administrator.

   6. (6)

      Order that the plaintiff’s reasonable costs of her probate claim be paid out of the deceased’s estate in New South Wales on the indemnity basis assessed in the amount of $197,835.95.

   7. (7)

      Order that the plaintiff’s reasonable costs of defending the family provision claims made by the second and fourth defendants and in facilitating the sale of the Campsie and Dulwich Hill properties by the Administrator be paid out of the deceased’s estate in New South Wales on the ordinary basis assessed in the amount of $60,050.40.

   8. (8)

      Order that the plaintiff be reimbursed out of the deceased’s estate in New South Wales for her costs of obtaining expert evidence in Greek law for the purpose of these proceedings, fixed in the amount of $42,820.

   9. (9)

      Order that the first defendant’s costs of obtaining probate of the deceased’s 2006 will be paid out of the deceased’s estate in New South Wales fixed at $15,441.10.

   10. (10)

       Order that the first defendant’s costs of investigating and initially defending the claims by the other parties in these proceedings be paid out of the deceased’s estate in New South Wales assessed in the amount of $70,832.88.

   11. (11)

       Order that the second defendant’s reasonable costs of prosecuting her family provision claim be paid out of the deceased’s estate in New South Wales on the ordinary basis assessed at $108,112.98.

   12. (12)

       Order that the third defendant’s reasonable costs of defending the family provision claims made by the second and fourth defendants be paid out of the deceased’s estate in New South Wales on the ordinary basis assessed at $131,882.88.

   13. (13)

       Order that the fourth defendant’s reasonable costs of prosecuting his family provision claim be paid out of the deceased’s estate in New South Wales on the ordinary basis assessed at $130,735.60.

   14. (14)

       Order that the Administrator is entitled to be paid out of the deceased’s estate in New South Wales his remuneration and costs in respect of obtaining the possession of and selling the Campsie property in the amount of $62,984.95.

   15. (15)

       Order that the Administrator is entitled to be paid out of the deceased’s estate in New South Wales his remuneration and costs in respect of obtaining the possession of and selling the Dulwich Hill property in the amount of $84,978.50.

   16. (16)

       Without prejudice to the Administrator’s right to make an application for the allowance of additional remuneration and costs of completing the administration of the deceased’s estate in New South Wales, order that the Administrator is entitled to be paid out of that estate at least $5,550 for completing the administration.

   17. (17)

       Order that the second defendant pay to the Administrator $35,271.51 as the costs of resisting the Administrator’s actions necessary to obtain possession of and sell the Campsie property.

   18. (18)

       Order that the fourth defendant pay to the Administrator $47,587.96 as the costs of resisting the Administrator’s actions necessary to obtain possession of and sell the Dulwich Hill property.

   19. (19)

       Order the Administrator to deduct the amounts of the costs payable by the second defendant and the fourth defendant under orders 17 and 18 from those defendants’ lump sum payments the subject of orders 1 and 2 and to apply the amounts deducted in the administration of the deceased’s estate in New South Wales.

   20. (20)

       Grants leave to the Administrator and the parties to apply by arrangement with the Associate to Robb J for any further orders necessary to give effect to these orders or as may be necessary to complete the administration of the deceased’s estate in New South Wales.