Linney v Solomou (No 2)

[2020] NSWSC 1242

Supreme Court

New South Wales

Medium Neutral Citation:

Linney v Solomou (No 2) [2020] NSWSC 1242

Hearing dates:

On the papers

Date of orders:

11 September 2020

Decision date:

11 September 2020

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

(1)   Order that the proceedings be dismissed.

(2)   Order that the defendant pay the plaintiff’s costs, agreed in the sum of $45,000 within 28 days of these orders.

(3) Order that the release by the plaintiff of her rights to apply for a family provision order out of the whole, or any part, of the estate or notional estate of the deceased, be approved pursuant to s 95 of the Succession Act, 2006 (NSW).

(4)   Order that there be no other order for costs.

Catchwords:

SUCCESSION — Family provision — Approval of release

Legislation Cited:

Succession Act 2006 (NSW), s 95

Cases Cited:

Linney v Solomou [2020] NSWSC 499

Category:

Costs

Parties:

Irene Linney (Plaintiff)
Nicholas Solomou (Defendant)

Representation:

Solicitors:
Lighthouse Law Group (Plaintiff)
Young and Muggleton (Defendant)

File Number(s):

2019/00261565

Publication restriction:

Nil

Judgment

1. HER HONOUR: By summons filed 22 August 2019, the plaintiff (Irene Linney) sought rectification of a deed dated 20 May 1997 between the plaintiff, the defendant (Nicholas Linney) and their late father (Andreas Solomou) (the deceased) and an order for specific performance against the defendant.

2. By notice of motion filed on 2 March 2020, the plaintiff sought an order that, upon the grant of probate of the estate of the deceased, any funds released to the defendant from certain specified bank accounts be limited to a particular sum and that the balance remain held on trust for both parties pending final orders in the proceedings.

3. The plaintiff’s notice of motion was dismissed with costs on 6 May 2020 (see Linney v Solomou [2020] NSWSC 499).

4. The parties have now reached a compromise of the dispute and have sought orders by consent including for the dismissal of the proceedings.

5. The consent orders seek an order pursuant to s 95 of the Succession Act 2006 (NSW), approving the release by the plaintiff of her rights to apply for a family provision order out of the whole or any part of the estate or notional estate of the deceased.

6. By affidavit sworn 2 September 2020, the plaintiff has deposed to the circumstances in which approval of the release referred to in [5] above is sought and addressing the matters to which regard must be had when approval is sought under s 95 of the Succession Act 2006 (NSW).

7. The parties agree that the time for the filing of a family provision application in respect of the estate of the deceased expired on 26 February 2020.

8. Having regard to the plaintiffs’ affidavit referred to in [6] and the defendant’s affidavit filed 3 February 2020 in the substantive proceeding, the Court makes orders by consent as follows:

Orders

1. Order that the proceedings be dismissed.

2. Order that the defendant pay the plaintiff’s costs, agreed in the sum of $45,000 within 28 days of these orders.

3. Order that the release by the plaintiff of her rights to apply for a family provision order out of the whole, or any part, of the estate or notional estate of the deceased, be approved pursuant to s 95 of the Succession Act, 2006 (NSW).

4. Order that there be no other order for costs.

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