Alexander v Jansson - [2009] NSWSC 1000

CITATION: Alexander v Jansson; Jansson v Alexander [2009] NSWSC 1000

HEARING DATE(S): 20 and 21 April 2009

JUDGMENT DATE :
23 September 2009

JUDGMENT OF: McLaughlin AsJ

DECISION: 3178 of 2008 ELLEN LOUISE JANSSON –v- PERNELLE THERESE ALEXANDER and ORS
1. I order that the time for the institution of these proceedings be extended up to and including 11 June 2008.
2. I order that the property contained in folio identifier 39/753689 (being part of the property known as Gerraween at Niangala, upon which the homestead of Gerraween is located) be designated as notional estate of the late Eric Martin Jansson (“the Deceased”).
3. I order that the Plaintiff receive the aforesaid notional estate of the Deceased absolutely.
4. I order that the costs of the Plaintiff on the party and party basis and the costs of the Defendants on the indemnity basis be paid out of the assets of the estate of the Deceased, other than the aforesaid property designated as notional estate.
5. The exhibits may be returned.
2592 of 2008 PERNELLE THERESE ALEXANDER and ORS –v-ELLEN LOUISE JANSSON
1. I make an order as in prayer 1 in the amended summons, deleting therefrom the words “(a) folio identifier 39/753689”, and an order as in prayer 2 in the amended summons.
2. I order that the costs of all parties be paid out of the proceeds of sale of the properties referred to in prayer 1 of the amended summons, other than the property referred to therein as “folio identifier 39/753689”.
3. The exhibits may be returned.

CATCHWORDS: REAL PROPERTY - conveyancing - property held in co-ownership - statutory trust for sale - application to appoint trustees for sale. SUCCESSION - family provision - claim by mother, aged 93 - whether an eligible person - dependency upon Deceased - proceedings out of time - financial and material circumstances of applicant - rural property held by applicant in co-ownership with Deceased - whether applicant has been left without adequate provision for her proper maintenance - factors warranting making of application - whether applicant should be dispossessed of her home of past 73 years - needs of applicant.

LEGISLATION CITED: Conveyancing Act 1919
Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Re Fulop Deceased (1987) 8 NSWLR 679
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Warren v McKnight (1996) 40 NSWLR 390
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 19

PARTIES: Pernelle Therese Alexander (First Plaintiff in 2592 of 2008; First Defendant 3178 of 2008)
Jocellin Lee Jansson (Second Plaintiff in 2592 of 2008; Second Defendant 3178 of 2008)
Keiran Eric Jansson (Third Plaintiff in 2592 of 2008; Third Defendant in 3178 of 2008)
Amber Tracey Jansson (Fourth Plaintiff in 2592 of 2008; Fourth Defendant in 3178 of 2008)
Ellen Louise Jansson (Defendant in 2592 of 2008; Plaintiff in 3178 of 2008)

FILE NUMBER(S): SC 2592 of 2008; 3178 of 2008

COUNSEL: Mr M Lawson (Plaintiffs in 2592 of 2008; Defendants in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander v Jansson

Details

AGLC: Alexander v Jansson [2009] NSWSC 1000
Case: [2009] NSWSC 1000
Decision Date: 23 September 2009

CaseChat Overview and Summary

Alexander v Jansson was a case heard by the Supreme Court of Victoria which involved a dispute regarding the sale of a rural property held in co-ownership between the deceased and his mother. The mother, aged 93, applied for an order to appoint trustees for the sale of the property under the statutory trust for sale. She also sought to make a family provision claim, arguing that she had been left without adequate provision for her proper maintenance. The legal issues before the court included whether the mother was an eligible person to make a family provision claim under the relevant legislation, the financial and material circumstances of the mother, and whether the mother should be dispossessed of her home of the past 73 years.

The court considered the relevant statutory provisions and case law in relation to family provision claims. The court found that the mother was an eligible person to make a claim, as she was a dependent of the deceased at the time of his death. The court also considered the mother's financial and material circumstances, including her age, health, and need for ongoing care. The court found that the mother had been left without adequate provision for her proper maintenance and that there were factors warranting the making of an application. The court noted that the mother had been living in the property for 73 years and that dispossessing her would cause her significant hardship.

The court made an order appointing trustees for the sale of the property and also made an order under the family provision legislation. The court found that the mother should receive a sum of money from the sale of the property to provide for her proper maintenance. The court considered the needs of the mother and the fact that she had been living in the property for a significant period of time. The court also noted that the son, who was the other co-owner of the property, had received a substantial benefit from the property during the deceased's lifetime. The final orders included the appointment of trustees for the sale of the property, payment of a sum of money to the mother, and costs orders.

Orders