Application by NSW Trustee and Guardian (Estate of the late Frederick John Vermaak) (No. 2)

The case involved an application by the NSW Trustee and Guardian, acting on behalf of the estate of the late Frederick John Vermaak, who died intestate. The dispute centred around whether the Court should make a Benjamin order, allowing the plaintiff to distribute the deceased's estate among his three known sons, even though there was some uncertainty about whether he may have had other children. The application was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the uncertainty regarding the potential existence of other children should prevent the Court from making a Benjamin order. The Court considered whether the evidence provided was sufficient to justify the making of a Benjamin order, and if so, what conditions should be attached to the order to protect the potential interests of any unknown children. The Court also had to weigh the interests of the known sons against the potential interests of any unknown children.

The Court found that the evidence did not definitively establish the existence of other children, and therefore, a Benjamin order could be made. The Court concluded that the interests of the known sons outweighed the potential interests of any unknown children, given the lack of evidence to support their existence. The Court made a Benjamin order with conditions attached, including a requirement for the plaintiff to advertise for any unknown children and to hold the estate for a period of time to allow for any claims to be made. The Court also ordered that any unknown children would have the right to claim their share of the estate within a specified period.

The Court ordered that the estate be distributed among the three known sons, subject to the conditions outlined in the Benjamin order. The Court also ordered that any unknown children would have the right to claim their share of the estate within a specified period.