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Judgment - EX TEMPORE

1. WHITE JA: This is an appeal from orders of the Equity Division (Emmett AJA) dismissing the appellant's application for a family provision order (Khadarou v Antarakis [2021] NSWSC 743).
2. The appellant claimed to be an eligible applicant pursuant to s 57(1)(f) of the Succession Act 2006 (NSW). That is, he claimed that at the time of the deceased's death he was living with the deceased in a close personal relationship. The primary judge held that if there were a close personal relationship between the deceased and the appellant, (which his Honour did not decide) nonetheless the appellant and the deceased were not living together at the time of the deceased's death (J [44]-[56]).
3. The appellant does not challenge that finding in his notice of appeal nor in his written submissions. To the contrary, he stated in his written submissions that he was not able to live with the deceased as he was obliged to care for his dependent children at the time. In oral submissions, he confirmed that he was not living with the deceased.
4. The primary judge also held (at [56]-[57]) that the evidence was not capable of supporting a conclusion that if the appellant were an eligible applicant under s 57(1)(f) there were factors warranting the making of the application (s 59(1)(b)).
5. The appellant had legal representation at trial but represented himself on appeal. In his notice of appeal he stated that he proceeded with his claim with the intention of seeking compensation for the works and care he had provided the deceased (ground 3). In his written submissions (prepared by his son) he stated: "It would be unconscionable for the deceased to resile from the promises he made to the appellant after years of support and companionship. If this was the case, then all these years Argyrios 'Eric' Antarakis was using the appellant this whole time to his advantage - something that shouldn't be appropriate in the eyes of the law. Nonetheless, it is evident that the appellant deserves compensation for the services provided to the deceased. The appellant did not bring a claim for remuneration from the estate for services provided to the deceased."
6. The last statement is certainly true. The appellant did not bring a claim for remuneration for services provided to the deceased. Instead he sought an order under s 59 of the Succession Act for provision out of the estate or notional estate of the deceased. Such an order can only be made in favour of an "eligible person" (s 59(1)(a)). An "eligible person" includes "a person with whom the deceased person was living in a close personal relationship at the time of the deceased person's death" (s 57(1)(f)).
7. Subsection 3(3) relevantly provides that: "For the purposes of the Act, a close personal relationship is a close personal relationship between two adult persons who are living together, one or each of whom provides the other with domestic support and personal care."
8. Section 59(1)(b) provides: "59 When family provision order may be made (cf FPA 7-9) (1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that - … (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of eligible person in section 57 - having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application"
9. That provision requires the eligible person who qualifies as such only under s 57(1)(d), (e) or (f) to be someone who would be a natural object of the deceased's testamentary recognition (Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681; Lodin v Lodin [2017] NSWCA 327 at [8]-[10], [106]-[107], [114]-[117]).
10. In his written submissions the appellant summarised the support he gave the deceased and the things he did for the deceased as follows: "The following is a list of the many supports and service over the years provided to Argyrios 'Eric' Antarakis by the appellant Sleiman Khadarou: a. Companionship b. Providing cooked meals prepared by the wife of Sleiman. c. Taking Eric to the shops when he was not able to do so independently. d. Fixed the deteriorated floor in one of Erics rooms. e. Arranging bookings with tradesmen for maintenance and repairs that required a professional to remedy the issues in the property. f. Encouraged and helped Eric to clean up his house as his hoarding became an issue for the property and hygiene. g. Arranged appointments with medical professionals personally to seek advice on what should be done regarding the symptoms Eric was experiencing when he was ill. h. Assisted Eric with toileting when he was not able to do so alone. i. Called the ambulance to enquire on his condition as he was not doing well. j. Provided support to Eric whilst he was admitted to the hospital"
11. The primary judge referred to these matters in greater detail (at [13]-[17]; [24]-[30]; [32]-[40]). His Honour found that the appellant had established a close friendship and the appellant fairly regularly provided the deceased with domestic support and personal care (at [44]).
12. The appellant deposed: "18. Throughout my friendship with him, Eric enjoyed the frequent meals I used to give to him, which were prepared by my wife. In the last 5 years of his life, I would take my children to school in the morning before going to see Eric and eat lunch with him almost every day. I would then stay with him until 6pm when I would go home to pick up a batch of freshly cooked dinner from my wife, bring it back to Eric's house, and eat dinner with him. 19. I would also come by on the weekends to stay with Eric. Often my children would come with me, and play in Eric's backyard. My children would sometimes call Eric 'grandfather' and sometimes just 'Eric'." But he never stayed overnight at the deceased's home but returned to his own residence where his wife and children resided ([47]).
13. The primary judge found: "[48] It may be that it is not necessary for a person to demonstrate that he or she reside in the same residence in order to be living together. That is to say, there may be a place where neither of them resides but where they regularly cohabit. However, living together requires some sleeping under the same roof, albeit not continually. The activities relied upon by the plaintiff, as described above, may be indicative of a close friendship, but no more. Even though the plaintiff and the Deceased may have often spent time together in close proximity at the Deceased's house, that, again, is more indicative of a close friendship rather than living together."
14. That accords with the decision of this court in Yesilhat v Calokerinos [2021] NSWCA 110 at [95] (Macfarlan JA), [132]-[134] (Brereton JA).
15. The finding that the appellant and the deceased were not living together is clearly correct. As noted above, it was not challenged. It follows that the appellant was not an eligible applicant for a family provision order.
16. The appellant required an extension of time for the filing of his notice of appeal. The respondent opposed the extension on the ground that before the notice of appeal was filed, but after the time for appeal had expired, she had compromised a claim for costs of the proceedings below against the appellant's solicitor on terms that no claim for the costs of those proceedings be brought against the appellant.
17. I would grant the extension of time for filing of the notice of appeal. When the respondent's application for a third party costs order was compromised she was on notice of the appellant's intention to file a notice of appeal out of time. The appeal should be dismissed on its merits.
18. For these reasons I propose the following orders: 1. Extend the time for the filing of the notice of appeal to 17 November 2021. 2. Appeal dismissed with costs.
19. KIRK JA: I agree with White JA.
20. BASTEN AJA: I also agree with the reasons and the orders proposed by White JA.