Katramados v Hasapis

Katramados v Hasapis - [2021] NSWSC 1656 - NSWSC 2021 case summary — Zoe

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: 289 Before I begin my consideration of the application of the statutory provisions to determine whether family provision orders should be made in favour of Adriana and Billy, I propose to collect a number of features of the present case, some of which are quite unusual, which confine the freedom of the Court in how it responds to the applications that have been made: (1) The deceased's assets were spread approximately equally between Greece and this State at the time of his death. (2) The Court's powers only extend to dealing with the disposition of property situated in this State. (3) The deceased's final December 2014 will effectively disposed of his primary and readily realisable property in Greece in favour of Maria. (4) The remaining effect of the December 2014 will was to create an apparently intentional intestacy in relation to all of the deceased's other property, with the effect that the intestacy rules of Greece and this State would deal in a mechanical way with the disposition of the property in each jurisdiction. (5) That effect of the 2014 will was inconsistent with the 2006 will and the assurances which Adriana and Billy say were frequently given to them by the deceased over many years before his death. (6) The deceased's remaining assets in Greece, said to be worth $690,914.43 (after conversion from the estimates made in euros) must be realised by officers of the Greek court. There is uncertainty as to when this will occur. The realised amount will be divided equally between Julia, Mary, Adriana and Billy, with each receiving an estimated $172,728.61. (7) The practical effect of the December 2014 will was to substantially throw the claims by Julia, Adriana and Billy onto the deceased's property in this State. (8) It is inevitable that an order will be made under s 66G of the Conveyancing Act that the Campsie property be sold by trustees for sale. At least when Julia receives that amount, estimated as being $625,000, her present serious lack of cash resources will be alleviated. (9) However, if the Campsie property is sold on the open market, Adriana will lose her home and the immediate ability to care for Diamando who lives with her. It is not clear whether Adriana will have sufficient funds to obtain any reasonably suitable alternative accommodation. (10) The title to the Dulwich Hill property must be transferred to the new administrator of the deceased's estate, which will lead to the eviction of Billy from the only accommodation now available to him. It is unlikely that Billy will have sufficient funds to obtain any reasonably suitable alternative accommodation. (11) It seems likely that Adriana and Billy will be evicted from their present accommodation long before they receive their share of the deceased's intestate estate in Greece, and as the estimate of the value of their shares is only $172,778.61, the eventual receipt of that amount may not make much difference to their ability to obtain suitable accommodation. (12) Adriana's and Billy's shares of the deceased's estate in this State are presently valued at $254,177.89, which when added to the Greek expectancy only gives a total of $416,440.61. (13) Even those estimates do not allow for the costs of the present proceedings, much of which is likely to be paid out of the deceased's property in this State before distributions are made to any of the claimants. (14) If the assumption that I have made above at par 55 is correct (by taking an approximate mid-point between the appraisal values for the deceased's interests in the Campsie property and the Dulwich Hill property) the present value of that property is $1,900,000. (15) If I assume (on the somewhat arbitrary basis discussed above) that the total amount of the legal costs of these proceedings that will have to be paid out of the estate is $500,000, then the balance of the estate available for distribution to all claimants will be $1,400,000. That is a proportionate reduction of 26.32%, say 25% for simplicity of reasoning. The consequence will be that every beneficiary's interest will be reduced by this percentage before any distribution can be made. (16) The amount of Mary's interest in the estate is $243,712, say $250,000. If this amount is reduced by 25%, the result is $187,500. As for the reasons I have given above, the effect of the undertaking given by Adriana and Billy to Mary is that no part of any family provision order made in their favour will be borne by Mary's share, then of the available $1,400,000, Mary will receive $187,500. The balance available for distribution will be $1,212,500. (17) It is against this reality that the reasonableness of the family provision orders suggested by Adriana and Billy must be measured. It will be remembered that Adriana asked for at least $625,000, representing the estate's interest in the Campsie property. Billy ultimately asked for an amount of $900,000. (It is assumed for the purposes of these calculations that Adriana's and Billy's legal costs are accommodated within the $500,000 that I have allowed). (18) The total amount of $1,525,000 is obviously far in excess of the $1,212,500 that is available after allowing for legal costs and Mary's share in the deceased's estate. Quite apart from the fact that family provision orders in these amounts are impossible, they would leave nothing out of the deceased's estate in this State for Julia, who was the deceased's wife for 43 years. (19) Furthermore, Adriana and Billy may bear some liability for resisting Julia's probate claim, so that the distributions that they ultimately receive may be further eroded by costs orders.

The first judgment then concluded as follows: 322 That brings the Court to the extremely difficult question of what must, or perhaps more properly, what can be done in the present case by way of the making of family provision orders in favour of Adriana and Billy? 323 For the purpose of deciding that question, in accordance with s 59(2) of the Succession Act, if the available property within the jurisdiction of the Court in this State had been sufficient to sustain the orders, it would have been justifiable for the Court to make family provision orders that would allow for the provision of some reasonable, secure accommodation for both applicants into the future, albeit perhaps not the properties in which they are living at present. 324 However, the obvious problem is, as discussed above, that the deceased's property in this State will ultimately have to bear a substantial amount for orders for costs, although for the special reasons that I have explained above, it is significantly more difficult in the present case for the Court to estimate the ultimate effect of those orders than is usual in family provision applications. As also explained above, the effect of the undertakings given by Adriana and Billy to Mary, is that on the one hand Mary's share of the remaining property will not be reduced except to the extent that the effect of costs orders may do so, and instead the value of the family provision orders made in favour of the applicants will be reduced by the proportion of the value of those family provision orders that the Court would otherwise have awarded be borne by Mary's share in the estate. I have also noted that it is possible, subject to final submissions, that the Court may rule that some part of the costs of Julia's probate proceedings must be borne by Adriana and Billy. 325 These considerations narrow the Court's focus to the conclusion that I have expressed in par 289(16) above, that the balance of the deceased's property available for distribution in these proceedings will be $1,212,500. I immediately acknowledge that the figure I have just given is a result only of a broad estimation and is only intended to provide some logical structure to the Court's decision-making process. 326 Accepting that the whole process is an evaluative one, rather than an application of scientific or mathematical reasoning, I have concluded on the basis of the whole of the evidence 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 legacies in the amounts of $700,000 and $750,000 respectively. The extra $50,000 provision for Billy would have acknowledged the fact that the deceased gave $57,000 to Adriana in 2013, and my judgment that Billy is slightly worse off than Adriana. 327 The total of $1,450,000 would have allowed for Mary's share in the estate and a relatively small legacy for Julia. The orders would have been made on the condition that Julia would be entitled to Adriana's and Billy's shares in the value of the deceased's intestate estate in Greece, said to have a value of $690,914.43, as well as Julia's own share. 328 The justification for extra family provision in favour of Adriana and Billy in the amounts specified above would have to be tested by comparison to the amount that Julia, as the long-time wife of the deceased, would have received. If the gift of the Greek property to Maria under the December 2014 will, valued at $832,732.91 (see par 79), is treated as being solely for the benefit of Maria, and not at all for the benefit of Julia, then the provision in favour of Adriana and Billy would clearly appear to be excessive. Julia would only receive three quarters of the residual value of the Greek estate and the relatively small proportion of the $1,900,000 that would remain available to Julia after payment of the legacies to Adriana and Billy, and also payment of Mary's share of the property in this State. 329 However, in my view it would be wrong to treat the effect of the deceased's December 2014 will as being to confer a benefit on Maria to the exclusion of Julia, by means of the gift of the principal part of the deceased's Greek property to Maria. For the reasons I have considered above (principally at par 225) I am satisfied that the deceased made the specific gift of his principal properties in Greece to Maria for the combined purpose of ensuring the welfare of Julia and at the same time providing for his stepdaughter. It is likely that the deceased made the judgment, which is amply borne out by the evidence, that Maria would continue to look after Julia, and that the combined interests of Julia and Maria in the properties would ensure that Julia was accommodated comfortably during the remainder of her lifetime. While it would not be rational to think of the effect of the deceased's December 2014 will as providing something of money value to Julia, I believe it is appropriate to assign a substantial notional value of that gift to Julia, if only for the purpose of making a judgment as to the provision that the deceased ought to have made in favour of Adriana and Billy, given the somewhat idiosyncratic testamentary instruments made by the deceased. 330 The obvious problem now is that the consequence of the costs that have to be borne by the deceased's property in this State is that legacies totalling $1,450,000 obviously cannot be paid out of a sum that has been assumed to be $1,212,500. 331 The inevitable consequence will be that the legacies that can be ordered in favour of Adriana and Billy must be reduced proportionately to allow for the payment of the costs, and then proportionate legacies in favour of Julia and Mary. 332 I do not propose to make any family provision orders to the effect that I have just suggested now. 333 My reason for taking this course is that, as a result of the unusual features and uncertainties of this matter, which I have discussed at various points above, I have concluded that it will be appropriate to allow the parties to consider these reasons for judgment, and then for the final orders to be reconsidered after further submissions. 334 In particular, as I have mentioned above, some of the evidence as to the value of the deceased's estate and various calculations that have been put before the Court appear to be questionable. I would prefer for those uncertainties to be resolved in fact, rather than to take the risk of making any orders that may involve error on the part of the Court. 335 There is also the need to resolve the issue of costs, and to deal with the effect of the undertaking given by Adriana and Billy to Mary. 336 When I deliver these reasons for judgment, I will discuss with the parties appropriate arrangements for the resolution of outstanding issues, and the making of final orders to complete the proceedings.

[4]

Second judgment

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.
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.
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: THE COURT BY CONSENT ORDERS Probate claim 1. Order that Gordon A. Salier AM be appointed Administrator with the will dated 21 December, 2014 annexed of the estate of the late Nicholas Kalantzis, ("the deceased") and shall have all such powers necessary for the carrying out of his functions. 2. Order that administration of the estate of the Deceased with the Deceased will dated 21 December 2014 annexed in solemn form be granted to the Administrator. … 4. The Court notes: Second, Third and Fourth Defendants do not oppose the appointment of Mr Gordon A Salier AM as Administrator CTA of the estate of the late Nicholas Kalantzis 5. Order that the grant of probate (the Grant) of the deceased made to the First Defendant by this Court on 30 March 2015 in probate suit 24780 of 2015 is revoked. 6. Order the First Defendant to deposit the Grant in the Registry. 7. Order that the file be returned to the Registrar to complete the new grant in accordance with order 2. Sale of the Campsie Property 8. Order that Gordon A. Salier AM be appointed as Trustee, ("the Trustee") for sale pursuant to s66G of the Conveyancing Act 1919 (NSW) of the property being the whole of the land contained in folio identifier F/369428 situate and known as 75 Duke Street, Campsie in the State of New South Wales, ("the Campsie property"). … 10. Order the Second Defendant to notify the Trustee for sale of the Campsie property, the Third and Fourth Defendants, and the associate to Robb J in writing by Thursday, 10 January 2019, if she wishes the sale of the Campsie property to be conducted consistently with Order 11 and if the Second Defendant does not give that notification, that order shall not apply, and the short minutes of orders for the appointment of the Trustee for the sale of the Campsie property shall not make provision for that order, but shall entitle the Second Defendant to make an offer to purchase the Campsie property in the same manner as all other prospective purchasers may make offers. 11. If the Second Defendant serves a notification that she does wish for the sale of the Campsie property to be conducted consistently with this order then: (a) the Second Defendant may bid at any auction for the sale of the Campsie property or make an offer for its purchase by any sale by private treaty; (b) if the Second Defendant is the successful bidder or offeror, the Second Defendant shall enter into a contract with the Trustee to purchase the Campsie property on the same conventional terms as are offered to the other potential purchasers. (c) On completion of the contract for the sale of the Campsie property the Trustee shall accept payment from the Second Defendant of the price, (as adjusted under the terms of the contract) less the sum of $400,000-00; (d) The $400,000-00 shall be an allowance for the value of the Second Defendant's share in the estate of the Deceased (with the final value of that share to be determined by the orders made by the Court in these proceedings and the completion of the administration of the Deceased's estate in this State and in Greece); (e) If the Second Defendant's share in the estate of the Deceased is ultimately ascertained as having a value less than $400,000-00, the Second Defendant will be liable to pay the difference to the Administrator within three months of demand being made; and (f) From the date of completion of any contract for sale of the Campsie property to the Second Defendant the potential liability of the Second Defendant to pay any additional amount as referred to in sub-order (e) will be a charge on the Campsie property, which charge may be protected by a caveat lodged against the title to that property 12. Order that upon the completion of the sale of the property the Trustee is to: (a) pay all Real Estate Agents commission and other professional[s] fees due and payable on the sale of the Campsie property, (b) pay any debt secured on the Campsie property; (c) pay all expenses incurred by the Trustee in the sale of the Campsie property; and (d) subject to orders 10 and 11, pay the remaining balance from the sale of the Campsie property: (i) as to 50% to the estate of the late Nicholas Kalantzis; and (ii) as to 50% to the Plaintiff's solicitor Londi Gramelis of First Choice Family Lawyers in trust for the plaintiff. 13. The Court Notes: that the Second, Third and Fourth Defendants agree to the appointment of Gordon A. Salier AM as the Trustee for Sale pursuant to s66G of the Conveyancing Act 1919 (NSW) of the Campsie property. Sale of the Dulwich Hill Property 14. Order that the Administrator be authorised to conduct, on behalf of the Fourth Defendant, the sale of the property situated and known as 436 New Canterbury Road, Dulwich Hill in the State of New South Wales, being the whole of the land contained in Certificate of Title Volume 13259 Folio 59 (the Dulwich Hill property), and being part of the estate of the Deceased upon such terms as the Administrator may think fit. 15. Order that the Administrator of the estate of the Deceased, shall have full authority to determine the terms of sale of the Dulwich Hill property and to require the Fourth Defendant to execute such contract of sale memorandum of transfer, and any other necessary documents as may be required to implement the sale of that property. 16. Order the Fourth Defendant to duly execute such contract for the sale of the Dulwich Hill property, such memorandum of transfer, and such other necessary documents, as may be submitted to the Fourth Defendant in accordance with Order 15 and to redeliver the executed documents within 7 days of receipt to the Administrator. 17. If the Dulwich Hill property is sold to any third party, order the fourth defendant to deliver possession of the Dulwich Hill property to the administrator within 14 days of being advised of the sale in writing. 18. Order that, notwithstanding that the title to the Dulwich Hill property is in the name of the fourth defendant as the registered proprietor, the fourth defendant may bid at any auction of the Dulwich Hill property, or negotiate for its purchase in any sale by private treaty as if the fourth defendant were not the registered proprietor of the property. 19. Order that if fourth defendant bids at any auction for the sale of the Dulwich Hill property or makes an offer for its purchase by any sale by private treaty the following terms shall apply: (a) if the fourth defendant is the successful bidder or offeror, the fourth defendant shall be liable to the Administrator on the same conventional terms as are offered to other potential purchasers, save it will not be necessary for the parties formally to complete the contract and the Administrator will accept payment of the price by the fourth defendant time provider for completion; (b) at the time provided for completion of the contract the Administrator shall accept payment by the fourth defendant of the price as adjusted under the terms of the contract, less $450,000; (c) the $450,000 shall be an allowance for the value of the fourth defendant's share in the estate of the Deceased ( with final value of that share to be determined by the orders made under the Court in these proceeding in the completion of the administration of the Deceased's estate in this State and Greece; (d) if the fourth defendant's share in the estate of the Deceased is ultimately ascertained as having a value of less than $450,000, the fourth defendant will be liable to pay the difference to the Administrator within three months of demand being made; (e) from the time provided for completion of any contract for the sale of the Dulwich Hill property to the fourth defendant the potential liability of the fourth defendant to pay any additional amount as referred to in sub-the order (d) will be a charge on the Dulwich Hill property, which charge may be protected by a caveat lodged against title to that property. 20. Grants liberty to the parties and the Administrator to apply to the Court on 3 days' notice by arrangement with the associate to Robb J in respect of any matter relevant to the interpretation or implementation of these orders.
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.

[5]

Third judgment

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.
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: 44 First, it would not be safe for the Court in these proceedings to attribute any value at all to the deceased's remaining Greek estate, unless and until that value has actually been realised. 45 Secondly, this Court is not in a position to proceed at all in relation to the Greek property without full evidence concerning the amount of the taxes that have accumulated in respect of each party's share of that property; which parties have not paid their taxes; and what they propose to do about it. For instance, if Adriana's and Billy's shares in the Greek estate have accumulated charges for substantial unpaid taxes; Adriana and Billy do not propose to pay those taxes; and consequently as a commercial matter the properties cannot be sold; then none of the other parties should be disadvantaged because of those circumstances. The same would equally be true if the other parties also had not paid the necessary taxes. 46 Thirdly, it is now plainly out of the question that the Court could make family provision orders in favour of Adriana and Billy out of the deceased's assets in this State, on the basis that it would be both fair and safe to expect Julia to accept, as a condition to the making of the family provision orders, the transfer by Adriana and Billy of their shares in the deceased's Greek estate to Julia. Those shares in the Greek estate will be of no value to Julia as long as Mary declines to consent to them being sold. Furthermore, Adriana's and Billy's shares could not be transferred to Julia without the outstanding taxes first being paid. 47 Fourthly, as I have explained above, the Court has already made orders to regulate the manner in which the Campsie property and the Dulwich Hill property may be sold, which assumed that there was a high likelihood that Adriana and Billy would at least be entitled to around $400,000 and $450,000 respectively from the estate of the deceased. It may now be unsafe for either Adriana or Billy to assume that they will have those respective sums available to apply towards the purchase of either property. If, as now appears, the Court may not be able to attribute any particular realisable value to the balance of the deceased's Greek estate, the share of the estate that both Adriana and Billy ultimately receive may be significantly less than the amounts that were assumed in the second judgment. It is obviously unsatisfactory that the Court was permitted to make the orders that it did on the basis of unsound evidence as to the realisable value of the balance of the deceased's Greek estate. 48 Finally, the revelation as to the apparent situation concerning the realisation of the deceased's remaining Greek estate prevents the Court from making any final orders in the family provision applications, without first being provided with definite information from each of the parties who have an interest in the remaining Greek estate as to exactly what their position is concerning the payment of Greek taxes and concerning their consent to the Greek property being sold. I appreciate that these proceedings may now be getting to the point where any increased costs cannot be justified in proportion to what the orders now available to be made by the Court may achieve, but the Court cannot ignore the issue given that, to date, it has proceeded upon the basis that the deceased's remaining Greek estate has a value of $690,914.43, compared with the assets in this State being worth $1,900,000.
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.
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].
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: It is now possible to make a somewhat more reliable estimate of the total costs that will be payable out of the estate of the deceased than was previously possible. I have assumed, rather liberally, that costs on the ordinary basis will be 80% of the amount incurred. Cost Amount Payable Comment Julia - Probate $197,835.95 $197,835.95 See footnote (1) Julia - FPA $43,813 $35,050.40 See footnote (2) Greek lawyer $42,820 $42,820 See footnote (3) Despina $15,441.10 $15,441.10 Probate Despina $88,541.10 $70,832.88 See footnote (4) Adriana $135,141.23 $108,112.98 See footnote (5) Mary $158,259.46 $131,882.88 See footnote (6) Billy Unknown $120,000 See footnote (7) Total $721,976.19 See footnote (8)

[6]

(1) This amount is derived by deducting the amount in the second row from Julia's complete costs of $241,648.95 and is subject to reduction on assessment even if awarded on an indemnity basis. (2) This amount has been determined by accepting the earlier information supplied by Julia that she has only incurred costs of this amount in defending the family provision claims. (3) This amount is expected to increase with the Greek lawyer's final account. (4) The Court is doubtful that this amount of costs could be sustained on an assessment. (5) Adriana's proportional recovery may increase, to the extent that she paid for the costs of investigating Julia's probate claim for which Despina will be entitled to an indemnity, subject to reduction on costs assessment. (6) The Court is doubtful that this amount of costs could be sustained on an assessment. (7) Subject to reduction on costs assessment. (8) This is the amount that matters. The total is subject to the uncertainties in the other amounts. The amount will be increased by any additional legal costs incurred by the parties that are recoverable. As a practical matter, allowance cannot be made at this stage for the administrator's costs of selling the estate's properties and administering the estate.

At the end of the third judgment I advised the parties of the orders that I then proposed to make in the following terms: 118 The orders that I propose to make at this stage of the proceedings are: (1) Order that the plaintiff's reasonable costs of her probate claim be paid out of the estate of the deceased on the indemnity basis. (2) Order that the plaintiff's reasonable costs of defending the family provision claims made by the second and fourth defendants be paid out of the estate of the deceased on the ordinary basis. (3) Order that the first defendant's costs of obtaining probate of the deceased's 2006 Will be paid out of the estate of the deceased fixed at $15,441.10. (4) Order that the first defendant's reasonable costs of investigating whether she had reasonable prospects of defending the plaintiff's probate claim, up to the point when the first defendant knew, or ought reasonably to have known, that she did not have reasonable prospects of defending the plaintiff's probate claim, be paid out of the estate of the deceased on the indemnity basis. (5) Order that the first defendant's costs of the first day of the hearing be paid out of the estate of the deceased on the indemnity basis, but that the first defendant shall not be entitled to her costs for the balance of the proceedings, save in respect of her submissions as to the costs orders that should be made, as to which those costs should be paid out of the estate of the deceased on the ordinary basis. (6) Order that, to the extent that the second defendant or the fourth defendant, or either of them, paid the reasonable costs of investigating whether the first defendant had reasonable prospects of defending the plaintiff's probate claim, instead of the first defendant paying those costs, the costs should be paid to the second defendant or the fourth defendant out of the estate of the deceased on the indemnity basis, subject to the proviso that the total amount paid out of the estate of the deceased for the costs of determining whether the first defendant had reasonable prospects of defending the plaintiff's probate claim shall be no more in total than if only one defendant had investigated that issue. (7) Order that the second defendant's reasonable costs of prosecuting her family provision claim be paid out of the estate of the deceased on the ordinary basis. (8) 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 estate of the deceased on the ordinary basis. (9) Order that the fourth defendant's reasonable costs of prosecuting his family provision claim be paid out of the estate of the deceased on the ordinary basis. (10) Grant liberty to all parties and to any costs assessor appointed to assess any of the costs orders made in these proceedings to apply to Robb J by arrangement with his Associate for the determination of any question considered expedient for the cost-efficient implementation of those costs orders. (11) Direct that any party who wishes to provide further information to the Court so as to enable the Court to make orders determining these proceedings do so within 14 days by succinct email sent to the Associate to Robb J to respond to the following questions: (a) If the party is entitled to an interest in the balance of the deceased's Greek estate, will that party join with the other parties so interested in authorising the sale of the Greek estate? (b) Does the party, to the party's knowledge, owe any taxes payable to any Greek tax authority in respect of any or all of the balance of the deceased's Greek estate in which the party has an interest? If so, how much, at what rate is the tax accumulating, and what (if anything) does the party propose to do in order to free the party's interest in the estate from the burden of Greek tax? (c) Does the party intend to require that any costs order/s made in favour of any other party be assessed, and if so which costs order/s? (d) Does the party prefer the Court to decide what orders should finally be made on the family provision applications by the second defendant and the fourth defendant on the basis of whatever information is now before the Court concerning the realisable value of the assets in the deceased's estate, or would the party prefer the Court to defer finally determining the claims until the Court has evidence of (1) the actual realised net value of the deceased's estate in this State following the sale of the relevant properties; and/or (2) the total amount paid out of the estate to satisfy costs orders in favour of the parties; and/or (3) the costs of the administrator in administering the estate?
My Associate received some communications in response to the direction in [116(11)].
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.
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.
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.
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.
Neither Despina nor Adriana responded to my request for the further information referred to above.
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.
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.
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.

[7]

Fourth judgment

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: The Court 1 Notes that no party has requested Gordon Albert Salier AM to take any step to administer the assets of the late Nicholas Kalantzis situated in Greece, and accordingly he does not intend to do so. 2 Orders pursuant to s 71 of the Trustee Act 1925 (NSW) that the property being the [Campsie Property] vest in Gordon Albert Salier AM. 3 Orders that the requirement to file a statement of claim in respect of the application for possession of the Campsie Property be dispensed with. 4 Orders that the Second Defendant, Adriana Hasapis (known for the purposes of these proceedings as Adriana Kalantzis) give Gordon Albert Salier AM possession of the Campsie Property. 5 Grants leave to Gordon Albert Salier AM to issue a writ of possession of the Campsie Property. 6 Orders that the leave given by order 5 be suspended, subject to further order of the Court, until the time allowed by order 7 for an application to be made for the setting aside of orders 2, 4 and 5 has elapsed without such application having been made. 7 Orders Gordon Albert Salier AM to serve on the mother of Adriana Kalantzis, who is said to be living at the Campsie Property, within seven days, a letter, addressed to her by her name, and in the manner permitted by rule 6.8(2) of the Uniform Civil Procedure Rules 2005 (NSW), which informs the mother that the Court has made orders 2 to 7, and advises her that, if she does not apply to the Court within 10 days, by notice of motion served on the other parties to these proceedings, for an order that she be added as a defendant to these proceedings, and for an order setting aside orders 2, 4 and 5, then Gordon Albert Salier AM will be entitled to exercise the leave granted to him to issue a writ of possession of the Campsie Property, by reason of which she may be evicted. 8 Directs Gordon Albert Salier AM to serve on the parties to these proceedings, and deliver to the associate to Robb J, within 21 days of the sale of the last of the Campsie Property and the [Dulwich Hill Property] to be sold in accordance with orders made by this Court, an affidavit which provides particulars of the net proceeds of sale of both properties and Mr Salier's claim for remuneration and expenses, and any other costs and expenses that are anticipated in the administration of the estate of the late Nicholas Kalantzis, as may be considered sufficient to enable the Court to make final family provision and costs orders in these proceedings. 9 Directs each party to these proceedings in whose favour the Court stated, in par 118 of its judgment delivered on 18 April 2019 (Katramados v Hasapis (No 3) [2019] NSWSC 435), that an order for costs will be made out of the estate of the late Nicholas Kalantzis, to serve on the parties to these proceedings, and deliver to the associate to Robb J, within 14 days of receiving the affidavit of Mr Salier referred to in order 8, an affidavit stating the estimated final costs and disbursements of that party to be the subject of the costs order, with reasonable particulars of the amounts claimed. 10 Directs any party who wishes to do so to serve on the parties to these proceedings, and to deliver to the associate to Robb J, within 28 days of receiving the affidavit of Mr Salier referred to in order 8, brief written submissions concerning the orders that the Court should make for the final determination of these proceedings, for the purpose of enabling the Court to determine what orders should be made in chambers, if that appears appropriate to the Court 11 Notes that, following receipt of the affidavits referred to in orders 8 and 9, and the submissions referred to in order 10, the associate to Robb J will, if it appears necessary and appropriate to Robb J to do so, list these proceedings for further directions for the purpose of determining what, if any, case management orders remain to be made for the purpose of enabling the Court to make final orders in these proceedings.
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.

[8]

Possession of properties

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".
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.
On 14 February 2020 I made the following orders: The Court [On Adriana's notice of motion] 1. Notes that the second defendant being the applicant on the notice of motion filed by her on 24 January 2020 has not appeared. 2. Stands the notice of motion filed on 24 January 2020 over to Tuesday, 25 February 2020 at 9:15am before Robb J for hearing, if the second defendant does not appear or for directions if the second defendant does appear. 3. Directs the plaintiff by her solicitor to send a copy of these orders to the second defendant's email address by 4pm Monday, 17 February 2020. [On a notice of motion filed by the Administrator] The Court 1. Makes orders in terms of the applicant's proposed short minutes of order signed by Robb J and dated today's date. 2. Grants leave to the parties to the notice of motion to relist the matter before Robb J on 2 days' notice by arrangement with the associate to Robb J in respect of any application for an extension of the periods referred to in orders 3 and 4 of the short minutes of order. Short minutes of order 1. Order that Gordon Albert Salier have the sole conduct of the sale of the [Dulwich Hill property] ("the Property"), including power to enter into a contract for sale of the land and to execute a Transfer in his own name to be signed by him or by his attorney. 2. Order that the requirements of rules 6.3(f) and 14.15 of the Uniform Civil Procedure Rules 2005 be dispensed with. 3. Order that the Fourth Defendant deliver possession of the Property to Gordon Albert Salier within 28 days of the date of the making of this order. 4. Order that leave to issue a writ of possession for the Property forthwith be granted to Gordon Albert Salier, but such writ shall not be executed until 30 days after the making of these orders. 5. Order that a writ of possession be issued in respect of the Property. 6. Order that the Fourth Defendant bear the Applicant's costs of the Notice of Motion filed 20 January 2020, on the ordinary basis, as agreed or assessed. 7. Order that the costs payable pursuant to the preceding order be retained by the Applicant out of the share of the estate of the late Nikos Kalantzis (also known as Nikolaos Kalantzis) to which the Fourth Defendant is entitled.
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.
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.
On 4 June 2020, following a hearing of Adriana's notice of motion, at which she represented herself, I made the following orders: The Court 1. Dismisses the second defendant's notice of motion filed 24 January 2020 for failure to comply with case management orders concerning the provision of evidence in support of it. 2. Directs Mr Salier, at a time in the administration of the estate that Mr Salier deems convenient, to notify the other parties of his intention to relist the matter and then to arrange a further hearing date with the associate to Robb J with a view to the hearing of any further applications for the purpose of, in due course, completing these proceedings.

[13]

Costs of obtaining possession of properties

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.
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.
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.
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.
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.
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.

[14]

Julia's additional costs

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

[15]

Comparison between actual and assumed NSW estate

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].
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.
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.
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.
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.
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.
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.
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.
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).
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.
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): Party - Cost Amount payable Julia - Probate $197,835.95 Julia - FPA $60,050.40 Greek lawyer $42,820 Despina - Probate $15,441.10 Despina - FPA $70,832.88 Adriana - FPA $108,112.98 Mary - FPA $131,882.88 Billy - FPA $130,735.60 Total $757,711.79

[17]

Effect of agreement between Adriana, Billy and Mary

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.
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.
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.
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.
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%).
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.
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.
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).
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.

[19]

Evidence at the hearing of value of Greek estate

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: 56 Julia gave evidence in her 5 July 2017 affidavit that the deceased's estate in Greece has a total value of $1,737,850 which, after payment of Greek land tax and other debts of $30,224, leaves a net value of $1,707,626. 57 The deceased's Greek estate is described by Julia as consisting of the following: [Table omitted] 58 On my calculation, the total value of the properties in the above table is $1,612,445, not the $1,737,850 claimed in Julia's evidence. The difference is $125,405. I do not know the reason for this discrepancy and whether the error lies in the calculation of the total made by Julia or some property has inadvertently been omitted from the table. 59 The evidence given by Julia of the value of the Greek properties in the deceased's estate was not supported by any independent valuations, or even what in this State would be understood as market appraisals by real estate agents. Julia did not explain the basis upon which the estimates of value were made (although I suspect that the specific values in Australian dollars reflect a round number estimate in euros). 60 The defendants also did not tender any market valuation or appraisal evidence to contest the estimates made by Julia. 61 Julia provided evidence of her own assets in Greece in an affidavit dated 8 December 2017. Those assets have a total value of $903,264, and are as follows: [Table omitted] … 65 Adriana sought to persuade the Court that many of the Greek properties would not be readily saleable for the values assigned to them; particularly the various fields owned by the deceased. Julia responded by submitting that the Court was obliged to rely upon the evidence of value that had been provided to it, and that Adriana had not provided any contrary evidence, either as to value or saleability. Julia's submission would in principle have been correct if Julia had provided independent evidence of the value of the properties, even if only in the form of the appraisals permitted by par 18 of Practice Note SC Eq 7. While Julia's evidence of value has been admitted, and there was no suggestion in cross-examination that she did not assign values to the properties conscientiously, it is difficult for the Court to give great weight to Julia's opinions as to value, given her lack of expertise, the absence of any explanation as to how she determined the values, the nature of some of the properties, and the relatively small values that have been attributed. 66 Julia's counsel informed the Court that, under Greek law, in respect of that part of the deceased's estate that passed on an intestacy, the actual administration of the estate, including the sale of the properties and the distribution of the proceeds, would be conducted by officers of the Greek court, rather than some individual in a similar position to an administrator, as would be appointed under the law of this State. While there was no evidence on the subject, and the matter was not considered in detail, it appeared to be accepted by all parties that there was reason to doubt that the administration of the intestate estate in Greece would occur expeditiously. 67 The uncertainty on the evidence as to when the deceased's property in Greece that passes on an intestacy will be realised, and what the price of realisation will be, prompted Adriana in her final written submissions to argue that the Court should not allow the deceased's estate in this State to be administered until the result of the administration of the Greek estate is known, because otherwise Adriana (as well as Billy) may be forced out of their homes in circumstances where the ultimate value of their shares in the deceased's estate are unknown and uncertain. I shall return to this issue below when I come to consider how the Court should resolve these unusual proceedings.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.

[21]

Draft orders

I will now set out draft orders that I propose to make to complete these proceedings.
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.
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.
Any submissions by the parties should be provided to my Associate within 28 days of the publication of these reasons for judgment.
The proposed orders of the Court are as follows: 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

At a glance

Court

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Before

Source

Judgment (22 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (4)

Cited By (1)