Bardi v Giannaros

Supreme Court of NSW|2025-02-27|Before: Kunc J, Ms P

Summary

The plaintiff (Ms Bardi), for whom Mr R Wilson of Senior Counsel appeared, is a resident of Greece. The defendant (Ms Giannaros), for whom Ms P Lowson of Counsel appeared, is the widow, executrix and sole beneficiary of the estate of the late George Giannaros (Mr Giannaros). He died at the age of 55 on 15 September 2023, within months of being diagnosed with cancer.
Ms Bardi commenced these proceedings for a family provision order in relation to the estate pursuant to s 59 of the Succession Act 2006 (NSW) by summons filed on 20 June 2024. All the evidence has been filed and the proceedings are listed for Court-annexed mediation on 1 April 2025.
By motion filed on 7 February 2025, Ms Bardi seeks these orders: 1. Orders, pursuant to r 51.60 of the Uniform Civil Procedure Rules 2005 (NSW) that Supreme Court of New South Wales Proceedings No. 2024/228124 be expedited. 2. In the alternative, an order, pursuant to s62 of the Succession Act 2006 (NSW), for interim provision to be made for the Plaintiff out of the Estate of the deceased. 3. Such further or other orders the Court deems fit. 4. The Plaintiff's costs of the motion be paid out of the Estate of the deceased.
For reasons of urgency which will become apparent, relating to Ms Bardi needing funds immediately to complete the purchase of an apartment in Athens, only the order for interim provision from the estate was pressed.
The Court will dismiss the motion for the reasons which follow. Those reasons may be summarised as: 1. On the untested evidence the Court was not satisfied on the balance of probabilities that Ms Bardi was an eligible person under the Act; 2. Even assuming in her favour that Ms Bardi was an eligible person, noting that there is no dispute that Mr Giannaros gave Ms Bardi €203,000 (A$337,770) while he was alive, the Court is not satisfied that Ms Bardi would receive at the final hearing not less than the A$400,000 being sought in the present application; 3. Making the same assumption in Ms Bardi's favour, as a matter of discretion the Court would not make the order sought because: 1. The Court would not have a sufficiently high degree of confidence in Ms Bardi's status as an eligible person (notwithstanding an assumed finding to that effect) to exercise its discretion in her favour; 2. There was unexplained delay in the making of the application which has resulted in it having to be heard at the last possible time, with a real possibility that any order the Court made would be futile; 3. The present application was an inapt use of the jurisdiction to obtain specific performance of Mr Giannaros' alleged promise to buy Ms Bardi an apartment in Athens. Ms Bardi's need for accommodation will be able to be dealt with at the final hearing; 4. To make an order now would require the estate to sell an asset or take some other significant and potentially irrevocable step, given that the cash is not presently available; 5. Ms Bardi, who has no connection with Australia other than this litigation, has not shown there is any practicable way of giving the estate security in relation to funds expended on the purchase of the apartment in Greece. In any event, the estate would still be left with the prospect of having to enforce those rights in Greece; 6. While there is a real risk of injustice to the estate, there is no greater or even equivalent disadvantage to Ms Bardi. Her need for accommodation and any losses or liabilities she may have in relation to the apartment would all be able to be taken into account at the final hearing.

The parties and the estate

Ms Giannaros married her late husband in 1995. They had two children, both of whom are now adults. There is a great deal of evidence that their marriage, as far as Ms Giannaros was concerned, was at all times a close and happy one. Among other things, there is evidence that Ms Giannaros saved her husband's life when he suffered a heart attack at the family home on the day of their wedding anniversary on 25 February 2023. She later remained with Mr Giannaros throughout his final hospitalisation until his untimely death from cancer.
In the days before he died, Mr Giannaros made a will which left his estate to Ms Giannaros and made no provision for Ms Bardi, notwithstanding the circumstances which I will next shortly relate. That he did so is in itself an important piece of evidence in ascertaining the nature of the relationship between Mr Giannaros and Ms Bardi. But for one piece of independently unverifiable evidence advanced by Ms Bardi, the evidence strongly supports the conclusion that Ms Giannaros knew nothing about Ms Bardi or her relationship with Mr Giannaros until the days before his death.
Ms Bardi met Mr Giannaros in Greece in May 2018. The evidence puts beyond doubt that the two of them engaged in a relationship, including a sexual relationship, both in Greece and Australia over the next five years. However, throughout those five years Mr Giannaros lived with his wife at their matrimonial home when he was in Sydney. He took no steps to divorce Ms Giannaros despite, on Ms Bardi's evidence, having told Ms Bardi that he was going to do so.
I use the term "relationship" in the preceding paragraph neutrally because the legal characterisation of the relationship between Ms Bardi and Mr Giannaros is a matter seriously in dispute in these proceedings. There is, for example, a factual dispute, which I need not resolve today, about how much time exactly they spent together and in what circumstances.
The resolution of those disputes will require a close examination and testing of the facts at any final hearing. However, one matter not in dispute is that Ms Giannaros accepts that one incident of the relationship between her late husband and Ms Bardi appears to have been that over the last three years of his life Mr Giannaros transferred approximately €203,000 (A$337,770) to Ms Bardi.
Ms Bardi's evidence is that she is living rent free with her mother in Athens. There is no evidence that arrangement might come to an end before the determination of the proceedings. She has been unemployed since July 2021 and is living on her savings. Those savings currently stand at approximately €40,000 ($A66,555) in the bank. She has a car, which she says was bought for her by Mr Giannaros, no other significant assets, and no liabilities other than living expenses (which are not quantified in her evidence). She deposes that she would like to open a beauty salon.
The estate has a net value of $1,295,000, represented by properties with no significant cash. Mr Wilson SC submitted that at final hearing Ms Bardi would receive provision of not less than A$600,000 (€360,600). Mr Wilson SC made some submissions about available notional estate, but ultimately accepted that possibility was irrelevant given that on any view there was sufficient in the estate to meet the amount that he submitted his client would ultimately receive at a final hearing.

Urgency

An important part of Ms Bardi's case is her allegation that Mr Giannaros promised to buy her an apartment in Athens. She says that pursuant to that promise, she entered into what was described as a "preliminary contract of sale subject to annulling clause" on 21 December 2022 to purchase such an apartment and in respect of which she paid a deposit of €26,000 (A$43,260), being 10% of the purchase price of €260,000 (A$432,600). She has also exercised what the contract describes as her "ownership and possession" from the date of the contract to effect some renovations (including to enable part of the apartment to be used as a beauty salon) and repairs at a cost of €24,000 (A$39,900) and has incurred outgoings and strata fees of €3,500 (A$5,820).
It is common ground that the first two of those sums of money were provided to Ms Bardi by Mr Giannaros, although it is not clear from the evidence whether they were part of, or in addition to, the €203,000 (A$337,770) referred to in [11] above. For present purposes I will assume the former.
It is the history of what happened to that contract next that has brought about the present application. A translation of the contract was in evidence but the Court did not have any expert evidence as to the Greek law of conveyancing about the parties' interest in the apartment at the various stages of the contract. In its terms, the contract noted the payment of the deposit and provided for: 1. the execution of the "definitive" or "final contract of the purchase" by no later than 1 December 2023 (completion date); 2. payment of €90,000 ($A149,750) at the time of execution of the final contract; 3. payment of €144,000 within four months after the completion date; and 4. default by the purchaser meant she "loses any amount she will have until then paid and it is acquired by the seller due to a penalty clause and compensation, which is agreed upon from now on and is considered fair and reasonable" and "she cannot seek from the seller the relevant renovation costs".
The evidence is that by agreement between Ms Bardi and the vendor of the apartment: 1. on 29 November 2023 the completion date was extended to 30 September 2024 (noting in passing that these proceedings were commenced on 20 June 2024); 2. on 20 September 2024 the completion date was extended to 15 January 2025; 3. on 15 January 2025 the completion date was extended to 14 February 2025; 4. on 13 February 2025 the completion date was extended to 24 February 2025; and 5. on 24 February 2025 the completion date was extended to 27 February 2025 (today).
The urgency impelling the present application was Ms Bardi's evidence that the vendor had "indicated he may not provide any further extensions to the time to complete the purchase of the apartment" and Ms Bardi required an interim provision in a sum sufficient to enable her to complete the purchase. That sum was A$400,000, being the balance of the purchase price of €234,000 (A$389,000) rounded up with a small buffer to A$400,000.
Ms Bardi's evidence included this advice from her Greek lawyer dated 13 January 2025: 2. The amount that remains to be paid by the buyer (Antzela Bardi) is €234,000euros [sic]. If the buyer Is unable to provide this amount, then the seller is not obliged to return the deposit of €26,000 as well as the amount of approximately €25,000 corresponding to the renovations and upgrading of the apartment residence as well as the amount of approximately €3500 corresponding to the maintenance of the mandatory shared fees (strata). If no extension is granted, the buyer loses all the aforementioned amounts, and the seller has the right to sell the property to someone else. Also, based on the renovations, the buyer has made a large area of the apartment is demolished, which could possibly upset the seller who has the right to take legal action against the buyer.
The motion was referred to me today by the Registrar in Probate and I have proceeded to hear it because of the urgent circumstances described above.

Ms Bardi's proposed orders

The precise form of relief for which Mr Wilson SC ultimately contended developed in the course of questions I asked him about what could be done to give some security to the estate if Ms Bardi's claim failed at final hearing or resulted in provision being ordered of less than A$400,000, because in either event there would be a revocation or variation of any interim provision order pursuant to s 62(2) of the Act. Mr Wilson SC's response reflected Ms Bardi's obligation to pay part of the outstanding purchase price on the completion date and the balance not more than four months later.
Mr Wilson submitted the Court could make orders that the €90,000 payable on the completion date should be immediately paid to Ms Bardi's solicitor on these terms: (1) It was only to be applied for the purchase of the apartment; and (2) It would only be released upon Ms Bardi satisfying the estate's lawyers that some form of security in the nature of a mortgage had been given over the apartment to secure the estate's position if Ms Bardi's claim was ultimately unsuccessful or resulted in provision of less than $A400,000.
It was then submitted that the balance of €140,000 could be ordered to be paid when required but only on the same terms as those just set out.
The Court has no evidence before it as to whether and, if so, how as a matter of Greek law these arrangements could be entered into. I note in passing that at least at the date of the contract, the vendor is recorded as having a mortgage over the apartment in favour of a bank securing €87,500.
A matter of significant concern to the Court in the exercise of its discretion is that even if those arrangements could be entered into, it would be a matter for the estate to seek to enforce those arrangements in Greece. As I have already noted, Ms Bardi is a resident of Greece and there was no dispute that she has no assets in, or other connection to, Australia.

Legal principles

There was no dispute about the relevant legal principles. Section 62 of the Act provides: 62 Interim family provision orders and orders restraining distribution of the estate (1) The Court may make an interim family provision order before it has fully considered an application for a family provision order if it is of the opinion that no less provision than that proposed in the interim order would be made in favour of the eligible person concerned in the final order. (2) After making an interim family provision order, the Court must proceed to finally determine the application for a family provision order by confirming, revoking or varying the interim order. (3) The Court may make an order restraining the final or partial distribution of an estate (other than a distribution under section 94 (1) of this Act or section 92A of the Probate and Administration Act 1898) pending its determination of an application for a family provision order.
Mr Wilson SC relied on the judgment of Meek J in Byrd v Margiotta [2023] NSWSC 1556, in particular his Honour's adoption (as I respectfully also do) of Hallen J's summary of the principles in Moore v McLean [2022] NSWSC 978 at [77] - [84].

Consideration - is Ms Bardi an "eligible person"

The essential starting point is whether or not Ms Bardi is an eligible person for the purposes of s 57 of the Act. While not an interlocutory application as commonly understood, an application under s 62 is procedurally similar because the Court must form its "opinion" "before it has fully considered an application for a family provision order" on untested evidence. However, it is clear that for the Court to make an interim order, it must be satisfied that the plaintiff is an eligible person. This gives rise to what in a case such as the present is a real dilemma if there is a genuine dispute between the parties about whether or not the plaintiff is an eligible person. As Ms Lowson submitted, the Court was being put in the incongruous position on what was otherwise an application for an interim order to make a final determination on the question of the plaintiff's status as an eligible person.
In my respectful opinion, this is a serious defect in the scheme of interim orders which merits legislative attention. These applications are usually brought for urgent reasons, such as a beneficiary in need of funds for living expenses or about to lose their accommodation. It would, for example, be completely contrary to achieving the overriding purpose under s 56 of the Civil Procedure Act 2005 (NSW) to compel what would be the contested hearing of a separate question as to the plaintiff's status with cross-examination and, as is usually the case in this kind of dispute, issues of credit being debated. Much of the same evidence of the relationship between the plaintiff and the deceased would be relevant to the final hearing and a second judge would have to become involved if the first judge had made adverse credit findings in relation to any of the parties or their witnesses.
This issue was adverted to by Hallen J when he said in Moore at [84b] (emphasis added): "For an interim order to be made, the applicant must establish that he, or she, is an eligible person, not a person who "may be" an eligible person. That is a finding of fact to be made on all the evidence in the context of the application as a whole. (Although not relevant in the present case, if eligibility were in issue, making an order for interim provision might place a Defendant, who disputes eligibility, at a considerable disadvantage at a final hearing as a finding of eligibility on the application would be based upon untested evidence.)"
Mr Wilson SC submitted that the evidence before the Court established that Ms Bardi was an eligible person because she had been living in a de facto relationship with Mr Giannaros for the purposes of s 57(1)(b) of the Act. He carefully took me through the facts and various requirements for that conclusion to be available to the Court.
In the alternative, he submitted that there was an even stronger case that the evidence made it quite clear that at particular times Ms Bardi had been wholly or partly dependent on Mr Giannaros, and had been a member of the household of which he had also been a member, for the purposes of s 57(1)(e) of the Act.
Mr Wilson SC, correctly in my respectful opinion, accepted that the Court had to be satisfied on a final basis that Ms Bardi was an eligible person and he submitted that the evidence was sufficient for me to reach that conclusion. On the other hand, Ms Lowson took me through the evidence with equal care to demonstrate that it was by no means as supportive of the conclusions for which Mr Wilson SC contended.
Having, in the time available, considered the evidence with the benefit of submissions from both parties, I have no doubt that there is a serious question to be tried that Ms Bardi is an eligible person. I express no view about what conclusion will be reached after the final hearing. However, I am not satisfied on the basis of the material I have seen, which remains untested, that it is so clear that I am actually persuaded on the balance of probabilities that Ms Bardi was an eligible person. I am therefore unable to find today on a final basis that she has that status.
However, if I am wrong in that conclusion, I will continue by assuming in Ms Bardi's favour that she is an eligible person, but without making a finding to that effect. Even on that basis, for the following reasons, Ms Bardi's application fails.

Consideration - "no less provision"?

The Court must form an opinion that on the balance of probabilities Ms Bardi will receive at final hearing a sum no less than that which she seeks in this application. I am not satisfied of that so as to be able to form the requisite opinion for a combination of three reasons: 1. This is a claim between a widow in what on the evidence before me from her point of view appears to have been an entirely happy 28 year marriage, and another person who on the evidence appears to have had what Ms Lowson described, with some justification, as a clandestine relationship with Mr Giannaros at intermittent periods over five years. There is a significant difference, in my respectful view, between their respective moral claims on Mr Giannaros' testamentary bounty. 2. There is no dispute that Mr Giannaros gave Ms Bardi €203,000 (A$337,770) in the last three years of their relationship. As I have already noted (see [15] above), I am unable to say from the evidence whether that includes the funds expended on the deposit and renovations of the apartment, but there was no dispute that those funds had also come from Mr Giannaros. Given such beneficence during life, I am not satisfied by the untested evidence on the balance of probabilities or at all that Ms Bardi would receive not less than the A$400,000 now sought by way of interim provision. 3. The fact that in the face of his impending death, Mr Giannaros did not include Ms Bardi in his final will, and where in that situation the Court would readily infer that he must have given thought to their respective claims on his estate.

Consideration - discretionary matters

There are then six discretionary reasons why, even if Ms Bardi was an eligible person and I were otherwise of the requisite opinion, I would not make the orders sought.
First, in my respectful opinion and echoing Hallen J's observation set out in [30] above, there is a real unfairness to Ms Giannaros, notwithstanding it is the effect of the legislation, for a seriously contested question of eligibility, which is a very fact sensitive exercise, to be decided finally in an application for an otherwise interim order, without a full examination of the facts, including cross-examination. Mr Wilson SC was unable to draw my attention to any authority where the Court had embarked upon that exercise in the context of an interim provision application. In the admittedly extremely limited time available to me, I have been unable to find such an authority. Given this unfairness, I consider that the Court should be very slow, on an interim provision application, to grant relief unless, even if it has found the requisite eligibility, it was very confident in that finding. Assuming I would have made the finding, I would not have had that degree of confidence.
Second, I am satisfied that there are real issues of delay and futility that weigh against the present application. As will be apparent from the chronology that I have set out in [17] above in relation to the history of the contract and its extensions, when it is borne in mind that these proceedings were commenced in June 2024, there was ample opportunity to have brought this application at a time when the contract for the purchase of the apartment had more than a period of less than one day to run. While Mr Wilson SC did his best from the Bar table to explain that delay, there is no evidence to explain it.
As was stated from the Bar table, there were entirely laudable efforts made for Ms Bardi to reach some agreement about the conduct of the proceedings that might have obviated the present application, but that is no excuse, when such efforts had come to nothing, not to have moved the Court earlier than has occurred.
I also accept Ms Lowson's submission that there is a real question as to whether any relief would be futile. As a matter of practicality, even if the Court were to order interim provision today, the estate does not have cash in that amount. There is no evidence about what the vendor of the apartment may do if told that the Court has made an order but that the money was not able to be released for some time into the future. Nor, in fairness, is there evidence as to whether or not the vendor would be willing to extend the contract or rescind if told that no order had been made. However one looks at it, there is no sufficient certainty that even if the Court were to grant the relief sought, it would enable the purchase of the apartment to go ahead.
Third, it is important to note that Ms Bardi's claim is limited to a family provision order. No estoppel or other claim is brought in relation to the allegation that Mr Giannaros promised to purchase the apartment for her. In my respectful opinion, it is at least an inapt use of the family provision jurisdiction to seek, in effect, relief that would be tantamount to specific performance of an alleged promise to finance the purchase of the apartment.
While of course not limited to applications for living expenses, the justification for interim provision applications for other purposes may need to be considered with particular care. In the present context, this may be demonstrated by observing that even if this apartment is lost, the existence of such a promise is likely to be very relevant, while not necessarily conclusive, at a final hearing if Ms Bardi could demonstrate the need for permanent, unencumbered accommodation as part of proper provision for her maintenance and advancement in life. If the Court is satisfied after a fully contested examination of the facts that Mr Giannaros promised to purchase the apartment for Ms Bardi and took steps toward that end, then such a finding may be highly relevant to the relief which the Court might grant.
Fourth, to make an order now would require the estate to sell an asset or take some other significant and potentially irrevocable step, given that the cash is not presently available. That consideration assumes particular importance in the light of the next two matters.
Fifth, as Hallen J observed in Moore at [84k], an important matter in the exercise of the Court's discretion is the extent to which it may be possible to secure the estate against the possibility that the plaintiff receives less than the amount of interim provision at final hearing or fails completely. While I accept that Mr Wilson SC and those instructing him have done their best to suggest an approach that might give the estate some comfort that it could recover from Ms Bardi in those circumstances, the absence of expert Greek legal evidence about that approach is, in my view, fatal for present purposes. It would be quite unfair to the estate for me to proceed in the absence of any proper evidence as to how such arrangements could be made in Greece, given the present contractual circumstances, or to make an order in the expectation that something suitable and effective might be able to be worked out later.
Despite the best efforts of those appearing for Ms Bardi, I am not satisfied that there is any straightforward way of achieving the requisite degree of security for the estate in relation to funds expended on the purchase of the apartment in Greece. Furthermore, even if there was such an arrangement, it is dispositive against Ms Bardi's application that the estate would still be left with the prospect of having to enforce those rights in Greece.
That is especially the case where Ms Bardi could simply abandon this litigation and take the benefit of the interim provision on the basis that she was at a relative distance from the possibility of any further action against her in Greece. I hasten to add that I take that into account as a theoretical possibility only, there being no evidence one way or the other as to its likelihood.
Sixth, the risk of injustice to the estate demonstrated by the fourth and fifth reasons to which I have referred outweighs the potential injustice to Ms Bardi of the order not being made. Mr Wilson SC sought to justify his client's final claim of A$600,000 (see [13] above) as including a provision for permanent, unencumbered accommodation. As I put to him during the course of argument, if it be assumed that the contract is lost such that Ms Bardi loses the deposit and the benefit of the funds that she has expended on the renovation (a total of €50,000 ($A83,190) - see [14] above) and is exposed to a liability in damages (presently speculative and unquantified), those would all be matters taken into account in assessing her circumstances at time of the final hearing, as the Court must do (see s 59(2) of the Act).
On the assumption that the Court was satisfied that she was an eligible person, the facts that she had lost the benefit of funds (which I note the estate will contend in any event were simply gifts to her by Mr Giannaros), might have some liability to the vendor, and was in need of accommodation and potentially a place from which she could earn a living, would all be matters that the Court would take into account on a final hearing in assessing what, if any, provision should be ordered in her favour. In short, other than having lost this particular apartment, I am not persuaded that Ms Bardi would be relevantly worse off in terms of the Court's consideration of her position at the final hearing so as to warrant an order now for interim provision to purchase the apartment. If the Court was satisfied that proper provision included permanent, unencumbered accommodation, then she would be put in funds accordingly.
For these reasons, the motion will be dismissed and I will hear the parties as to costs.

Addendum as to costs

I then heard the parties as to costs and indicated I would give brief reasons in this judgment for my decision on that question.
Ms Lowson submitted that costs should follow the event. She sought those costs on the indemnity basis in reliance on a letter from her instructing solicitor to Ms Bardi's solicitor dated 10 February 2025. That letter had correctly foreshadowed a number of the matters which I have found to be persuasive in dismissing the motion and concluded "Your client's motion is entirely misplaced. If you proceed to file it it will be opposed and this letter will be relied on on the question of indemnity costs to be paid forthwith by your client". Ms Lowson did not press for an order that the costs be paid forthwith.
Mr Wilson SC submitted that in family provision matters the Court had a discretion not to make costs orders. His client could not satisfy a costs order and all that would happen is that the size of her claim for provision would increase to reflect that liability. The letter of 10 February 2025 did not contain an offer of any kind. He submitted that Ms Giannaros should have her costs out of the estate and that there should be no order as to Ms Bardi's costs.
I accepted Ms Lowson's submissions. The Court has made clear in numerous judgments that while it can make special costs orders in family provision matters reflecting the circumstances of the parties, in general the usual costs rules apply. This was a hard fought motion and there was no reason why costs should not follow the event.
Furthermore, where the letter of 10 February 2025 had correctly identified at least some of the main reasons why the Court ultimately dismissed the motion, and gave Ms Bardi fair warning of what would be sought if she filed her motion and failed, the justice of the case warranted an order for indemnity costs. It was not to the point that the letter did not make an offer of any kind. It did not have to. Where such letters are sent and there is no persuasive countervailing reason for them not be given effect in the exercise of the Court's discretion, the Court should give them effect, not least to encourage parties to adhere to their obligation to achieve the overriding purpose, in this context by giving careful thought before embarking on any application to the Court when genuine difficulties with the application are drawn to attention.

Conclusion

The Court made these orders: 1. The plaintiff's motion filed 7 February 2025 is dismissed. 2. The plaintiff is to pay the defendant's costs of the motion on the indemnity basis. 3. The defendant is to have her costs out of the estate on the indemnity basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2025

At a glance

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Judgment (11 paragraphs)

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