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[2025] NSWSC 430
Supreme Court of NSW
2025-05-01
Brereton J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: The Estate of Susan Elisabeth Mangoulias [2025] NSWSC 430
Hearing dates: 1 May 2025
Date of orders: 1 May 2025
Decision date: 01 May 2025
Jurisdiction: Equity
Before: Brereton J
Decision: See [16]
Catchwords: PRACTICE AND PROCEDURE – Vacation of hearing date – where the Cross-Claimant seeks the vacation of a scheduled hearing date – where the Cross-Defendant opposes the application to vacate hearing – where updating affidavits were served late – where updating affidavits contain evidence of a change of circumstances and further investigations are required – application to vacate the scheduled hearing is granted.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: Baker v Baker [2024] NSWSC 559
Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174
Texts Cited: N.A.
Category: Principal judgment
Parties: Ryan Christopher Cooney (Plaintiff/Cross-Defendant)
Elisabeth Anne Ruby Ward (Defendant/Cross-Claimant)
Representation: Counsel:
S Foda (Plaintiff/Cross-Defendant)
M Maconachie (Defendant/Cross-Claimant)
Solicitors:
Blackwell Short (Plaintiff/Cross-Defendant)
Tony Cox Lawyers & Conveyancers (Defendant/Cross-Claimant)
File Number(s): 2023/83019
Publication restriction: N.A.
By Notice of Motion filed in Court today, the Cross-Claimant in the proceedings, Ms Ward, seeks an order that the hearing scheduled to commence on 5 May 2025 be vacated. She relies on the affidavit of Mr Hamish John McCormack sworn 30 April 2025. The application is opposed. The Cross-Defendant relies on an affidavit of Mr Charles Henley affirmed 30 April 2025.
What is left in these proceedings is a cross-claim by which Ms Ward seeks a family provision order. That claim was made in an Amended Statement of Cross-Claim filed on 18 October 2023. Ms Ward is the daughter of the deceased, Ms Susan Elisabeth Mangoulias. The Cross-Defendant, Mr Cooney, is the executor of the estate. The beneficiaries of Ms Mangoulias' will are Ms Ward and her brother, Mr Thomas Mangoulias. Mr Mangoulias is the residuary beneficiary and, as I understand it, is to receive a significant part of the estate.
There is evidence filed in the proceedings that will seek to prove that Mr Mangoulias suffers from autism and has special needs. In determining whether there is to be a family provision order made in favour of Ms Ward, the financial resources, needs and circumstances of Mr Mangoulias will be a highly relevant matter.
The matter came before a Registrar of the Court on 21 October 2024 for the purpose of allocating a hearing date. On that occasion, the parties confirmed all their evidence was on and that there were no outstanding interlocutory applications. The Registrar listed the proceedings for hearing to commence on 5 May 2025 with an estimate of four days. The Registrar made the usual order for hearing. There was also an order that updating affidavits were to be filed and served no later than 28 days prior to the hearing.
On 29 April 2025, the solicitors for Mr Cooney served two affidavits, one being an affidavit of Mr Cooney sworn 28 April 2025, and the other an affidavit of Mr Thomas Mangoulias which was signed on 29 April 2025. It is unclear whether that affidavit was sworn or affirmed. The affidavits were updating affidavits. There is a dispute about whether the affidavits are truly updating affidavits, but that dispute strikes me as irrelevant for present purposes. There is no dispute that the affidavits were served late. The orders of the Court required updating affidavits to be filed and served no later than 28 days before the hearing.
Ms Ward contends that the late service of the affidavits has left inadequate time to prepare for the cross-examination of Mr Mangoulias. It is contended that the affidavit of Mr Mangoulias indicates that his circumstances have changed considerably and his new evidence prompts the possible need for further disclosure or subpoenas and other investigatory steps.
Counsel for Ms Ward has assured the Court that it is his professional view that he has been provided with information of sufficient importance and is sufficiently cogent that he is not in a position to cross-examine Mr Mangoulias at the hearing commencing next Monday and that there are threads of inquiry that he anticipates will take two to three weeks at a minimum. I place considerable reliance on assurances given by Counsel to the Court.
Mr Cooney's solicitor has indicated that, to the extent that the late evidence causes prejudice, it will not be relied upon. Often that would be an appropriate way to relieve prejudice, but I do not think it does so in this case. The changes to Mr Mangoulias's circumstances are such that it is incumbent on Mr Cooney to disclose them. There is a fundamental obligation to make disclosure of them in Family Provision cases: see Baker v Baker [2024] NSWSC 559 at [53]. Although Mr Mangoulias is not the applicant, his circumstances are relevant in this case.
Moreover, Mr Cooney could not have read the affidavit evidence of Mr Mangoulias served in these proceedings last year without leading further evidence, because it would have been misleading to have done so, which counsel for the Cross-Defendant readily accepted. For instance, Mr Mangoulias's affidavit of 3 May 2024 states that he has never lived on his own and that as at the date of the affidavit, he does not have capacity to live on his own, but he hopes to be able to do so in the future. His affidavit of 29 April 2025 states that he is no longer living at the home he was living at at the time of his earlier affidavit and that he now lives on his own. His evidence is that he stopped living at his previous premises around October 2024 and, following an argument, he decided to move out and try living on his own. That is, I would have thought, a change in circumstance that might be highly relevant in these proceedings with the potential, at least, to reduce the claim that he might otherwise have on the estate.
Whether or not all of Mr Mangoulias's most recent affidavit is read, it reveals matters that Ms Ward is entitled to investigate and I accept that these would be matters that could possibly be required to be dealt with in cross-examination. It would be unfair to Ms Ward to be required to do that without adequate time to prepare.
The Court has power pursuant to section 66 of the Civil Procedure Act 2005 (NSW) to vacate hearing dates and also has an inherent power to do so. Principles relating to vacating a hearing date were identified in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13] by Ward JA as follows:
The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
It is always unfortunate for a hearing to be vacated, especially so close to the hearing date. I am sympathetic to the disappointment that the Cross-Defendant would naturally feel about a vacation in this instance. However, I am satisfied that it is necessary in this case to vacate the hearing date.
The late service of the affidavit material from Mr Cooney has placed Ms Ward in a position whereby she would suffer prejudice if the proceeding were to proceed next Monday. In coming to that conclusion, I have placed considerable weight on the assurances that I have received from the Counsel for Ms Ward.
It is desirable for the matter to proceed as soon as possible. Neither party should consider that the vacation presents an opportunity to prepare, or rely, on further evidence. There remains an outstanding question as to whether or not Ms Ward should be able to rely on the whole of the affidavits of Ms Ward of 11 April 2025 and Mr Brendan Ward of 7 April 2025. There has been a real dispute as to whether the Cross-Claimant, Ms Ward, should have been able to rely on that affidavit material which, on the face of it, was served well out of time. It is, however, not for me at present to make any rulings as to whether or not Ms Ward should be entitled to rely on that evidence. That is a matter for a later occasion.
What I am proposing to do is to stand the matter over for a period of approximately three weeks in order to ascertain the position of Ms Ward as to the taking of the earliest possible hearing date.
I make the following orders:
The hearing scheduled to commence on Monday 5 May 2025 is vacated.
The matter is stood over before me in the Applications List for directions on 23 May 2025.
Costs reserved.
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Baker
Baker