Just in Case Law

CASE: Kids' Kinder Childcare Pty Limited v The Department of Education [2024] NSWDC 345WARNING: Disturbing content; child abuseParents are entitled to expect that when they leave their children at a childcare centre, their children will be properly cared for. That did not occur at Jumpstart Childcare in Menai. Kids' Kinder Childcare Pty Limited, operating as Jumpstart Childcare, pleaded guilty to several offences including subjecting children to unreasonable discipline, failing to protect a child from a hazard, and failing to ensure the safety and wellbeing of children at its service. After receiving their sentence - an arguably not-so hefty fine - the sole director, Thomas Fanous, appealed against the severity of the sentence. On reviewing the facts, the appeal court agreed that the sentence needed to be appealed, but because it was too lenient and the fine was increased.

CASE: Estate MPS, deceased [2017] NSWSC 482; Smoje vForrester [2017] NSWCA 308Miryana Smoje spent the last two years of her life dying slowly and in constant pain, from breast cancer and inadequate medical care, in a small hotel room in Frenchs Forest. She died without a will and her closest relatives was her brother Neven. But before her estate worth about $2.25m could pass to Neven, there was a claim on the estate. David Forrester applied for provision from the estate on the basis that not only had he been Miryana's carer for the last two years of her life, but also because he had been living with her in a close personal relationship at the time of her death. Was he successful?

CASE: Flourentzou v Spink [2019] NSWCA 315In 2012, Dianne and Mario Flourentzou purchased a property in Casula to live in with their three children. Dianne's mother, Ricky Spink, contributed $165,000 towards the purchase and renovation of the Casula property on the understanding that she could live with them at the property for the rest of her life. Within 3 years, relationships had soured and Ricky was kicked out of the family home.Was there any way she could get her money back?

CASE: Croft v Sanders [2019] NSWCA 303When Warwick Croft made his last Will in 2013, he was 82 years old and suffering from delusions. He believed that four of his daughters were scheming against him, that they worked in a brothel and were sending prostitutes to knock on his door late at night. He talking about seeing things in his backyard - a black panther, huge owls, and one of his daughters running down a fence. Croft's Will left most of his $3 million estate to one of his six daughters, Anna. Two of the daughters, Leah and Esther, challenged the Will on the basis that their father lacked capacity when it was made. The Court was required to determine to what extent Croft's Will was influenced by his delusions and what was a reasonable response to his daughters taking their mother's side in his divorce.

CASE: Council of the Law Society of NSW v Zhukovska [2019] NSWCATOD 66Recommended by Leah Murphy (formerly Leah Johnson)Myroslava Zhukovska was the solicitor for Dulcie Barbara Heane who was elderly and living in aged care.Within a short period of time, Zhukovska got financial control of Dulcie's money, sold Dulcie's home, made unsecured loans from Dulcie's money to her clients and herself, and paid herself $76,000 for all her work from Dulcie's money.Can a lawyer do all that and still be permitted to practice law?

CASE: DPP v Gargasoulas [2019] VSC 87WARNING: Disturbing content of murder, violence and drug use.On the 20 January 2017, around 1.30pm James Gargasoulas drove a Holden Commodore into the pedestrian only Bourke Street in the Melbourne Central business district. He deliberately mowing down pedestrians who were walking through the mall. 27 people were struck and suffered physical and psychological injuries. Six people were killed, two of whom were children.Gargasoulas was found guilty of six counts of murder and 27 counts of reckless conduct endangering life. Justice Weinberg called it one of the ‘worst examples of mass murder’ in Australia’s history and ordered James Gargasoulas to serve six concurrent life sentences.

CASE: In the Estate of McFadyen [2015] ACTSC 2019In 2014, 64-year-old Shenee McFadyen was visited by an old work colleague, AB. Within the short two-week visit, AB took Shenee to a solicitor to do a new Will, leaving her whole estate to AB. Shortly after, Shenee was hospitalised with cerebellar haemorrhage. AB did not come to see her. Shenee died four months after having signed the Will. AB did not attend the funeral. Shenee's lifelong friend Marlene applied to the Court to find that the last Will was invalid due to lack of capacity.

CASE: Straede v Eastwood [2003] NSWSC 280In August 2000, John Straede was driving his wife Cheryl to work. He overtook the car in front of him on a hill and collided with an oncoming vehicle. Cheryl was killed in the accident. John pleaded guilty to dangerous driving causing death. The question in this case was not whether John was guilty of causing Cheryl's death, it was whether he was still entitled to inherit from her estate. John applied for relief from the forfeiture rule, the rule that states that a person shall not benefit from the death they have caused. However, the case focused little on the car accident itself and more on the ménage à trois with another woman.

CASES: GYM [2017] WASAT 136 & KRM [2017] WASAT 135By 2016, GYM and KRM has been married for over 60 years, had three adult sons and several grandchildren. They also owned a farm worth over $1.6 million, expensive farming equipment and tools, and a residential house in Mullaloo, WA.By the end of 2017, they would have about $40,000 in the bank account and nothing else. Where had all their property and assets gone? To their three sons.

Let's celebrate the best holiday of the year with some funny Halloween legal cases! Thanks to Matt, my co-host for this episode <3

CASE: R v Sweet [2021] QDC 216Kym Anthony Sweet was charged with committing two criminal drug offences. He argued that he couldn't be charged because he consists of two separate entities: There was the real-life flesh and blood man that goes by the name Kym-Anthony and then there is a straw man or dummy corporation which goes by KYM ANTHONY SWEET.And the real person, Kym-Anthony, was not subject to the laws of Queensland. Therefore, he argued, the criminal charges against him should be dismissed.

CASE: Suzanne Dale Smith by her next friend the Public Trustee -v- Marion Kathryn Partridge as executor of the Estate of Thomas Smith [2018] WASC 128Marion was the executor of her late father Thomas Smith's estate. In her capacity as executor, she transferred Thomas's house into her name, and held all of the funds in his estate. The Court Ordered that Thomas's other daughter, Suzanne, also receive provision from Thomas's estate. That's when Marion went to ground. She didn't comply with the Court Orders to pay Suzanne her money.Suzanne started new proceedings against Marion, seeking to have Marion removed from the position of executor. Marion was ordered to appear before the Court, but she didn't. It is a disturbing thing when the executor uses the law to get all of the deceased's assets and then hides from the responsibilities of that position.

CASE: Napier Keen Pty Ltd v Smith [2023] NSWSC 1134Beverley was a bookkeeper for the law firm Keen Lawyers for 16 years. After Beverley resigned, her boss Mr Keen discovered that Beverley had been taking money from the business. Over a period of 7 years, she siphoned over $1 million from the firm. Unfortunately, by the time the theft was discovered, Beverley had lost most of the funds in pokie machines.The firm sued not only Beverley, but also her partner Gregory. Although Gregory was not involved the the thefts and had no knowledge of them, the firm wanted him to be liable to repay them then stolen funds. Can a spouse be financially liable for what the money their partner steals?

CASE: Ashton v Pratt (No 2) [2012] NSWSC 3Madison Ashton provided escort services to the late Richard Pratt, a married man of exceptional wealth. She would provide such services from time to time and for reward. When Pratt ended the relationship in 2004, Ashton sued him to enforce their contract. According to Ashton, if she left the escort business and became Pratt's mistress, Pratt agreed to create a trust fund of $2.5 million for each of her two children and pay her an allowance of $500,000 per year . Before the case went to hearing, Pratt died in 2009 and Ashton found herself suing his estate and his widow.

CASE: Hughes v Sangster [2019] ACTSC 178Christine Hughes and her daughter Martell Sangster decided to combine their finances and buy a house together. Christine contributed 100% of the purchase price, but was only registered on title as owning 50%. Martell had promised that she would pay her mother 50% of the purchase price as soon as she sold her existing house. They all moved into the new home together: Christine, her daughter Martell, Martell's husband Dr Sangster and their three children. Several years later, the arrangement ended and for years Christine and her daughter disputed over how the proceeds from the sale of the house would be divided. Martell had only ever paid for 5% of the original purchase price but she was the registered owner of 50%. It was up to Christine to prove to the Court that was entitled to more than 50% of the proceeds.

CASE: Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813Blanche Minnie Condon died in 2016 leaving behind an estate worth about $7m. She had made her last Will only a few weeks before her death. Her Will made no provision for her nephew Andrew Battenberg, who was living in Scotland. Andrew challenged the validity of the last Will. He much preferred Blanche’s earlier Wills in which he got a little something. The catch? What makes this case different? Andrew had no assets in Australia, which made the executors of Blanche’s estate nervous about recouping legal costs if Andrew lost his case. It would take additional time and money to enforce any NSW court orders in Scotland. The executors asked the court for security for costs — basically, a legal “just in case” deposit.In Part 1 we looked at the executor's claim for security for costs.In this Part 2 we look at Andrew's challenge to the validity of the last Will and whether it was successful.

CASE: Re Estate Condon; Battenberg v Phillips [2017] NSWSC 1813Blanche Minnie Condon died in 2016 leaving behind an estate worth about $7m. She had made her last Will only a few weeks before her death. Her Will made no provision for her nephew Andrew Battenberg, who was living in Scotland. Andrew challenged the validity of the last Will. He much preferred Blanche’s earlier Wills in which he got a little something. The catch? What makes this case different? Andrew had no assets in Australia, which made the executors of Blanche’s estate nervous about recouping legal costs if Andrew lost his case. It would take additional time and money to enforce any NSW court orders in Scotland. The executors asked the court for security for costs — basically, a legal “just in case” deposit.In Part 1 we look at the executor's claim for security for costs.In Part 2 we look at Andrew's challenge to the validity of the last Will and whether it was successful.

CASE: KNQ [2019] NSWCATGD 19Despite the almost comical feel of the term “granny napping”, it is a serious problem that involves taking control over an older person’s life, isolating them from family and support networks, in order to get a financial advantage or other personal reasons. It is generally a traumatic experience for everyone involved. In this case, everyone agreed that the older person KNQ (referred to in the episode as "Kate") was in need of full-time care in a nursing home. Her doctors agreed, the Aged Care Assessment Team agreed, her daughter agreed, and one of her sons agreed. The only one who didn't agree was 'Kate's' son LAB (referred to as "Larry" in the episode). On the very same day that the NSW Civil and Administrative Tribunal appointed the NSW Public Guardian to be Kate's guardian, Larry absconded with Kate across the border to the Canberra, ACT. This kicked off further proceedings in the ACT Civil and Administrative Tribunal and the NSW Civil and Administrative Tribunal to determine who should be Kate's guardian and raised the question - If one Tribunal makes an order, can the other Tribunal overrule it?

CASE: NSW Trustee & Guardian v McGrath [2013] NSWSC 1894Ethel Clarke was estranged from her family. Her closest relatives where six grandchildren who she rarely saw and who appeared to want nothing to do with her.When Ethel died in October 2009 without a Will, the NSW Trustee & Guardian were appointed as the administrators of her estate. Maurice McGrath claimed that he had been Ethel's de facto partner of more than 20 years, and was therefore entitled to a share of her estate. The grandchildren disputed this, but how would they really know anything about Ethel's life? The fight for Ethel's estate was still ongoing 4 years later, when Maurice died. Leaving it to Maurice's estate to continue the fight on his behalf.

CASE: The Council of the NSW Bar Association v Rollinson [2021] NSWSC 1319; The Council of the NSW Bar Association v Rollinson [2021] NSWSC 1090; The Council of the NSW Bar Association v Rollinson [2022] NSWSC 407; The Council of the NSW Bar Association v Rollinson (costs) [2021] NSWSC 1091Michael Rollinson was a barrister and in 2021 there was a delay in receiving his certificate to practice law. He gave an undertaking to stop working as a barrister until he had his practicing certificate. But he didn't stop. There was an injunction against him to stop working as a solicitor, just until the practicing certificate issue was cleared up. But he didn't stop. There was a second injunction, but he didn't stop.There was a court order - he didn't stop. Finally, he was charged with contempt of court and sentenced to 9 months in prison if he did not stop practicing as a barrister without a practicing certificate...