Lo Surdo v Public Trustee & Anor [2003] NSWSC 837

Lo Surdo v Public Trustee & Anor [2003] NSWSC 837

Summary termination was refused because the second defendant did not clearly establish that the plaintiff was adopted or was not a child of the deceased; the expert evidence supported that affiliato meant fostered and did not confer inheritance rights. Security for costs was refused because, although the plaintiff resided in Italy, he had assets there, Italy was subject to reciprocal enforcement arrangements, there was no evidence of the cost of registering a judgment in Italy, and family provision costs considerations weighed against security. The injunction was refused in the exercise of discretion because there was no evidence of an immediate threat to dispose of the distributed...

Jurisdiction
Australia
Judgment Date
17 September 2003
Procedural Posture
Family Provision Claim Under the Family Provision Act 1982 / Interlocutory Applications for Stay or Strike Out, Security for Costs, and Injunction
Outcome
Application for summary termination and security for costs dismissed. Application for injunction dismissed.
Legal Topics
['eligibility as Child of Deceased' 'adoption and Affiliato Status Under Italian Law' 'summary Dismissal' 'security for Costs for Non Resident Plaintiff' 'notional Estate' 'interlocutory Injunction Restraining Dealings With Distributed Estate Property']
['succession' 'family Provision' 'civil Procedure'] ['eligibility as Child of Deceased' 'adoption and Affiliato Status Under Italian Law' 'summary Dismissal' 'security for Costs for Non Resident Plaintiff' 'notional Estate' 'interlocutory Injunction Restraining Dealings With Distributed Estate Property']

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Procedural Posture

Family Provision Claim Under the Family Provision Act 1982 / Interlocutory Applications for Stay or Strike Out, Security for Costs, and Injunction

Legal Issues

  1. 1 ['Whether the plaintiff was adopted by Antonino Lo Surdo and Giuseppa Gaetano so as not to be a child of the deceased for the purposes of the Family Provision Act 1982.' "Whether the plaintiff's non-residence in Australia and lack of intention to join the Australian community justified summary termination of the family provision proceedings." 'Whether the plaintiff should provide security for costs because he was ordinarily resident outside New South Wales.' 'Whether the second defendant should be restrained from dealing with properties distributed to her from the estate pending determination of the proceedings.']

Ratio Decidendi

Summary termination was refused because the second defendant did not clearly establish that the plaintiff was adopted or was not a child of the deceased; the expert evidence supported that affiliato meant fostered and did not confer inheritance rights. Security for costs was refused because, although the plaintiff resided in Italy, he had assets there, Italy was subject to reciprocal enforcement arrangements, there was no evidence of the cost of registering a judgment in Italy, and family provision costs considerations weighed against security. The injunction was refused in the exercise of discretion because there was no evidence of an immediate threat to dispose of the distributed...

Court Disposition

Application for summary termination and security for costs dismissed. Application for injunction dismissed.

Orders

  • ["Paragraph 1 of the second defendant's notice of motion dismissed." "Paragraph 2 of the second defendant's notice of motion dismissed." "The plaintiff's notice of motion for injunctive relief dismissed." 'Parties to be heard on costs.' 'Parties directed to bring in short minutes of orders reflecting the reasons.']