Khadarou v Antarakis

WHITE JA: This is an appeal from orders of the Equity Division (Emmett AJA) dismissing the appellant’s application for a family provision order (Khadarou v Antarakis [2021] NSWSC 743).

The appellant claimed to be an eligible applicant pursuant to s 57(1)(f) of the Succession Act 2006 (NSW). That is, he claimed that at the time of the deceased’s death he was living with the deceased in a close personal relationship. The primary judge held that if there were a close personal relationship between the deceased and the appellant, (which his Honour did not decide) nonetheless the appellant and the deceased were not living together at the time of the deceased’s death (J [44]-[56]).

The appellant does not challenge that finding in his notice of appeal nor in his written submissions. To the contrary, he stated in his written submissions that he was not able to live with the deceased as he was obliged to care for his dependent children at the time. In oral submissions, he confirmed that he was not living with the deceased.

The primary judge also held (at [56]-[57]) that the evidence was not capable of supporting a conclusion that if the appellant were an eligible applicant under s 57(1)(f) there were factors warranting the making of the application (s 59(1)(b)).

The appellant had legal representation at trial but represented himself on appeal. In his notice of appeal he stated that he proceeded with his claim with the intention of seeking compensation for the works and care he had provided the deceased (ground 3). In his written submissions (prepared by his son) he stated:

The last statement is certainly true. The appellant did not bring a claim for remuneration for services provided to the deceased. Instead he sought an order under s 59 of the Succession Act for provision out of the estate or notional estate of the deceased. Such an order can only be made in favour of an “eligible person” (s 59(1)(a)). An “eligible person” includes “a person with whom the deceased person was living in a close personal relationship at the time of the deceased person’s death” (s 57(1)(f)).

Subsection 3(3) relevantly provides that:

Section 59(1)(b) provides:

That provision requires the eligible person who qualifies as such only under s 57(1)(d), (e) or (f) to be someone who would be a natural object of the deceased’s testamentary recognition (Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681; Lodin v Lodin [2017] NSWCA 327 at [8]-[10], [106]-[107], [114]-[117]).

In his written submissions the appellant summarised the support he gave the deceased and the things he did for the deceased as follows:

The primary judge referred to these matters in greater detail (at [13]-[17]; [24]-[30]; [32]-[40]). His Honour found that the appellant had established a close friendship and the appellant fairly regularly provided the deceased with domestic support and personal care (at [44]).

The appellant deposed:

The primary judge found:

That accords with the decision of this court in Yesilhat v Calokerinos [2021] NSWCA 110 at [95] (Macfarlan JA), [132]-[134] (Brereton JA).

The finding that the appellant and the deceased were not living together is clearly correct. As noted above, it was not challenged. It follows that the appellant was not an eligible applicant for a family provision order.

The appellant required an extension of time for the filing of his notice of appeal. The respondent opposed the extension on the ground that before the notice of appeal was filed, but after the time for appeal had expired, she had compromised a claim for costs of the proceedings below against the appellant’s solicitor on terms that no claim for the costs of those proceedings be brought against the appellant.

I would grant the extension of time for filing of the notice of appeal. When the respondent’s application for a third party costs order was compromised she was on notice of the appellant’s intention to file a notice of appeal out of time. The appeal should be dismissed on its merits.

For these reasons I propose the following orders:

KIRK JA: I agree with White JA.

BASTEN AJA: I also agree with the reasons and the orders proposed by White JA.