Ali v Ali - [2011] NSWSC 261

Supreme Court

New South Wales

Medium Neutral Citation: Ali v Ali [2011] NSWSC 261
Hearing dates: 21 and 22 February 2011
Decision date: 07 April 2011
Before: Tamberlin AJ
Decision:
1. In proceeding 2008/281384 order that:
a) pursuant to s 7 of the Family Provision Act 1982 (NSW), provision be made from the estate of the deceased for each of the plaintiffs to receive a one-third share of the net distributable value of the estate after the taking of accounts;
b) otherwise the proceeding be dismissed;
c) costs of this proceeding be paid from the estate of the deceased on an indemnity basis.
d) liberty to apply on 2 days' notice
2. In proceeding 2010/211560 order that:
a) the matter be referred to an Associate Justice of the Equity Division to inquire into and assess the amount of rent paid to the defendant by the tenant of the property at 41a Esk Avenue, Green Valley, as well as any reasonable expenses relating to the proper repair or maintenance of the premises incurred by the defendant;
b) the defendant pay to the first plaintiff all rental moneys paid to her by the tenant of the property at 41a Esk Avenue, Green Valley, less any reasonable expenses relating to the proper repair or maintenance of the premises following the inquiry referred to in order 2(a) above;
c) the matter be referred to an Associate Justice of the Equity Division to inquire into and assess the amount of rent paid to the defendant by the tenant of the property at 41b Esk Avenue, Green Valley, as well as any reasonable expenses relating to the proper repair or maintenance of the premises incurred by the defendant;
d) the defendant pay to the first plaintiff all rental moneys paid to her by the tenant of the property at 41b Esk Avenue, Green Valley, less any reasonable expenses relating to the proper repair or maintenance of the premises following the inquiry referred to in order 2(c) above;
e) costs of this proceeding be paid from the estate of the deceased on an indemnity basis.
f) liberty to apply on 2 days' notice.

Catchwords:
WILLS AND ESTATES - intestacy - family provision claim -power to make orders affecting immovable property of deceased in New South Wales - no power to make orders affecting property outside of New South Wales - orders to adjust entitlements of claimants on intestacy appropriate.

WILLS AND ESTATES - administratrix - duty to get in assets - appropriate to order account for rent for properties forming part of estate.
EQUITY - trusts - express trust - no evidence of present intention to create a trust.
Legislation Cited: Family Provision Act 1982 (NSW)
Probate Administration Act 1898 (NSW)
Cases Cited: Ciaglia v Ciaglia [2010] NSWSC 341
Maks v Maks (1986) 6 NSWLR 34
Savic v Kim [2010] NSWSC 1401
Singer v Berghouse (No 2) [1994] HCA 40; (1994) 181 CLR 201
Taylor v Farrugia [2009] NSWSC 801
Vigolo v Bostin [2005] HCA 11

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 Ali v Ali

Details

AGLC: Ali v Ali [2011] NSWSC 261
Case: [2011] NSWSC 261
Decision Date: 07 April 2011

CaseChat Overview and Summary

In the matter of Ali v Ali, the dispute centred around the intestacy of the deceased, Mr. Ali, and the subsequent family provision claim. The case was heard in the Supreme Court of New South Wales. The primary issue was whether the court had the jurisdiction to make orders affecting the deceased's immovable property, particularly if it was located outside New South Wales. Additionally, the court needed to determine whether the administratrix of the estate had a duty to account for the rent of certain properties that were part of the estate.

The court found that while it did have the power to make orders affecting the deceased's immovable property within New South Wales, it did not have the jurisdiction to make such orders regarding property located outside the state. As for the family provision claim, the court held that it was appropriate to adjust the entitlements of the claimants on intestacy. Furthermore, the court held that the administratrix did have a duty to account for the rent of the properties forming part of the estate. Lastly, concerning the express trust, the court found there was no evidence of a present intention to create such a trust.

The court's final orders included the adjustment of entitlements for the claimants on intestacy and a direction for the administratrix to account for the rent of the properties. The court's decision emphasised the jurisdictional limitations regarding orders affecting immovable property outside New South Wales and the duty of an administratrix to account for the estate's income.

Orders