Barbanera v Barbabera Anors: Estate of the late Antonio Barbanera [2017] NSWSC 357

John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.

John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.

John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.

The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.

His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.

John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.

His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.

His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.

John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.

His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.

Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.

At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:

“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”

Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.

His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.

His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.

SMH – Warring children ignore judge’s warning about fight over father’s will

Padria v Padria [2012] FAMILY COURT

In this matter Greg Walsh acted for the mother who had received information and documents from the father in financial proceedings in the Family Court. She had sent that information and those documents to the Child Support Registrar with a departure application.

It would agree that the information in those documents attracted the operation of a Harman obligation, being an obligation to prevent the use of information by a third party who is aware of its provenance. The issue that arose was whether the Registrar had breached the Harman obligation and also whether the mother had breached that obligation. It was contended by the father that the Registrar had aided and abetted the mother in breaching the Harman obligation. It was argued on behalf of the mother and the Registrar that the Harman obligation must yield to a statutory provision, namely provisions of the Child Support (Assessment) Act (CSAA) involving the nature of disclosure in the departure application to the Registrar.

The mother and the Registrar relied upon extensive case law in respect of these issues in the hearing before Justice Watts. His Honour held that neither the Registrar nor the mother were in breach of the Harman obligation and a declaration was made that the Registrars and officers and employees of the Department of Human Services are not prohibited by reason of any undertaking to the Family Court from using information in the exercise of their statutory functions and powers namely the information in the documents sent by the mother to the Department as part of her application.

An application by the Father that a case be started before Court was also dismissed by Watts J.

Yeats v Yeats (6 MAY 2008)

In this matter, Greg Walsh acted for the applicant, Ms Yeats, the wife of Mr Yeats, who was in receipt of a benefit from the Department of Social Security.

The wife was removed from the Wiley Park Hotel, which she had managed for some years, on 17.07.2006. She was removed in the early hours of the morning when a large number of police from Campsie Police Station arrived for the purposes of executing a search warrant. The wife, who had met her husband in 1989, married him in April 1992. She had no assets and her husband had significant assets including the Wiley Park Hotel, Guildford Hotel and the Nortons on Norton Hotel.

The husband’s assets exceeded $15 million.

The wife was physically escorted by police to a section of the Hotel where the husband’s solicitor Mr Stephen Alexander directed that she forthwith remove herself from the Hotel or otherwise she would be charged. He didn’t indicate what she would be charged with. The wife had no choice whatsoever which was extraordinary situation and she was forced from the hotel and onto the street without her clothing or personal effects including her beloved three dogs.

The wife also instituted proceedings in the Supreme Court of New South Wales against the State of New South Wales and Mr Yeats and Jetobee Pty Limited, the corporate entity controlled by the husband. She sought damages including exemplary and aggravated damages for the malicious procurement of the warrant, her wrongful arrest and false imprisonment and malicious prosecution. The husband filed a cross-claim in the Supreme Court alleging that the wife had defrauded himself and Jetobee Pty Limited for the sum of $800,000.00.

Justice Le Poer Trench considered the principles applicable to an interim spouse maintenance order. His Honour noted that the uncontradictive evidence was that the wife was living in shared accommodation consisting of a two bedroom unit that her sister and brother-in-law lived in.

She had previously resided in accommodation at the Wiley Park Hotel where she undertook a considerable amount of work in management and renovation. The husband lived in the Guildford Hotel. His assets were $12.5 million and liabilities of $8.8 million. As a result of the incident on 17 July 2006, the wife was traumatised and her health was such that she was unable to obtain employment.

The husband had $1.045 million in publicly listed shares as well as a Bentley valued at $150,000.00. The dividends from Jetobee Pty Limited were $50,000.00, AMP dividends of $25,000.00 and other dividends from public companies of $3,000.00. His Honour failed to see how an income of $78,000.00 produced a tax liability of $80,000.00 which is asserted by the husband.

The husband was owed $1.7 million by LJ & CA Yeats Pty Limited and he had a portfolio worth $1.045 million. The husband had not disclosed any detail of the movement in any of the loan accounts he has with any of his associated corporate interests.

The wife’s application sought payment of $300,000 for the provision of costs for the family law proceedings and $100,000 for payment of costs in relation to the criminal proceedings the wife was facing. The application was brought pursuant to s.79 of the Act. See Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578.

Justice Le Poer Trench concluded that the sum of $100,000.00 to be paid to the wife’s solicitor’s trust account to be applied only to costs for the family law proceedings noting that in the future the wife could seek further amounts should that be necessary.

His Honour also ordered that the wife be paid the sum of $100,000.00 by way of interim/partial property settlement to be paid to the wife’s solicitors and be applied by them to fund the wife’s defence in criminal charges brought by the Crown in relation to allegations against the wife during the time she was at the Wiley Park Hotel.

In a post script to this decision the criminal proceedings against the wife were heard at the Burwood Local Court before Magistrate Barkell. Mr Yeats gave evidence in which he was cross-examined about the information that he had provided to investigating police in a meeting at the Norton on Norton Hotel just shortly before the execution of the search warrant by police from Campsie. At that meeting was a licensing police officer from Leichhardt Police Station.

Mr Yeats was cross-examined about information given to the Police and in particular assertions that in respect of an account in respect of which normally would be substantially in credit. In cross-examination it was revealed that Mr Yeats had himself caused electronically to be transferred a large sum of money from that account so as to deplete the credit balance in the account to demonstrate that monies had allegedly been withdrawn from the account by the wife. The fact is that these monies had been withdrawn from their account by Mr Yeats himself.

All of the charges against Ms Yeats were dismissed and in fact, her Honour was not satisfied that a “prima facie” case had been made out.

Dean v Dean

Represented the successful appellant in an appeal to the Family Court of Australia arising from a property hearing before Rose J.

Director General of Department of Community Services v W & Ors (1994-1995)

In this matter Greg Walsh represented a father, mother and grandmother in respect of care proceedings that was heard over a period of 107 days. The hearing dealt with complex issues arising from allegations based upon the complaint of one of W’s children who suffered from Repressed Memory Syndrome.

Wilson v McDougal & Anor (1987) NSWLR 241

In this matter, Greg Walsh represented the successful defendant arising from an appeal from a decision of a Magistrate to award costs to the defendants arising from care proceedings pursuant to the Child Welfare Act 1939. Newman J held that where proceeding in their conduct, with the Child Welfare Act 1939, are both misconceived and mischievous of latter element entitles the Court to use its inherent jurisdiction to award costs and an appropriate remedy to counteract the mischief.