Smoje v Forrester [2017] NSWCA 308

Smoje v Forrester [2017] NSWCA 308

The respondent was not an eligible person under s 57(1)(f) because, on his own evidence and the uncontested evidence, it was not reasonably open to find that he and the deceased were living together at the time of her death. His visits and occasional overnight stays on the floor while caring for the deceased did not amount to living together, and the evidence showed that he regarded the Herbert Street premises as his home and that the hotel room was not used or capable of being used by him as a shared residence. The appeal was therefore allowed and the plaintiff's summons dismissed.

Jurisdiction
Australia
Judgment Date
04 December 2017
Procedural Posture
Appeal in Family Provision Proceedings Under the Succession Act 2006 (nsw) / Appeal From Orders of Lindsay J in the Supreme Court of New South Wales, Equity Division, [2017] NSWSC 482
Outcome
Appeal allowed.
Legal Topics
['family Provision' 'eligible Persons' 'close Personal Relationship' 'living Together' 'domestic Support and Personal Care' 'fee and Reward' 'expert Evidence' 'credibility Findings']
['succession' 'evidence'] ['family Provision' 'eligible Persons' 'close Personal Relationship' 'living Together' 'domestic Support and Personal Care' 'fee and Reward' 'expert Evidence' 'credibility Findings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal in Family Provision Proceedings Under the Succession Act 2006 (nsw) / Appeal From Orders of Lindsay J in the Supreme Court of New South Wales, Equity Division, [2017] NSWSC 482

Legal Issues

  1. 1 ['Whether the respondent was a person with whom the deceased was living in a close personal relationship at the time of her death within s 57(1)(f) of the Succession Act 2006 (NSW).' "Whether the respondent and deceased were living together at the time of the deceased's death." 'Whether the domestic support and personal care provided by the respondent was provided for fee and reward.' 'Whether the primary judge erred by finding that the respondent suffered from a mental health disability and using that finding in assessing credibility in the absence of expert evidence.']

Ratio Decidendi

The respondent was not an eligible person under s 57(1)(f) because, on his own evidence and the uncontested evidence, it was not reasonably open to find that he and the deceased were living together at the time of her death. His visits and occasional overnight stays on the floor while caring for the deceased did not amount to living together, and the evidence showed that he regarded the Herbert Street premises as his home and that the hotel room was not used or capable of being used by him as a shared residence. The appeal was therefore allowed and the plaintiff's summons dismissed.

Court Disposition

Appeal allowed.

Orders

  • ['Set aside orders 1, 2, 3 and 4 made on 30 May 2017.' "Dismiss the plaintiff's summons." "The defendant's costs of the proceedings be paid out of the estate of the deceased (Miryana Smoje) on the indemnity basis." "Appellant's costs of the appeal be paid out of the deceased's estate on the indemnity basis." "The...