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Austin v Austin

Austin v Austin

Case [2019] NSWSC 1397 30 August 2019

Family Provision

Inter vivos Release

Section 95 Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Austin v Austin [2019] NSWSC 1397
Hearing dates: 28 August 2019
Date of orders: 30 August 2019
Decision date: 30 August 2019
Jurisdiction: Equity
Before: Hallen J
Decision:
See Paragraph [63]

Catchwords: SUCCESSION – Family Provision – Approval sought of inter vivos release made by the Defendant in respect of his rights to make an application for a family provision order in respect of the estate of his wife, the Plaintiff, in the event she shall become a deceased person – No proceedings extant between the parties and no other familial dispute between them – Section 95 Succession Act 2006 (NSW) – Extent of circumstances considered on approval of inter vivos release – Importance of the parties’ right to enter into agreement – Whether inter vivos release made should be approved by Court – Amended release made by the Defendant – Amended release approved
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Abrahams v Abrahams (2015) 13 ASTLR 406; [2015] QCA 286
Affoo v Public Trustee of Queensland (2012) 1 Qd R 408; [2011] QSC 309
Bartlett v Coomber [2008] NSWCA 100
Kelly v Kelly [2019] NSWSC 994
Robinson v Robinson [2019] NSWCA 180
Smith v Smith (No 3) (1986) 161 CLR 217; [1986] HCA 36
Category: Principal judgment
Parties: Fiona Louise Mac Cormick Austin (Plaintiff)
Philip Daniel Austin (Defendant)
Representation:
Counsel:
Mr A Harding (Plaintiff)
Mr M Jassy (Solicitor) (Defendant)
Solicitors:
HWL Ebsworth Lawyers (Plaintiff)
Jassy Lawyers (Defendant)

File Number(s): 2019/226913

Judgment – EX TEMPORE (REVISED)

The Claim

HIS HONOUR: On Wednesday, 28 August 2019, I heard an application for the approval of an inter vivos release, by the Defendant, of his rights to apply for a family provision order commenced before the date of the death of the Plaintiff, his spouse, whose estate may be the subject of an order for provision upon her death. These are my reasons for approving the release, amended by the agreement of the parties, following the hearing, and before any decision had been made in regard to the release initially made by the Defendant.
The release that was the subject of the initial application for approval was contained in a Deed of Release and Indemnity dated 27 March 2019. It provided, amongst other things, that the Defendant “agrees to release his rights to make any claim for further provision against [the Plaintiff’s] estate or notional estate pursuant to Chapter 3 of the Succession Act”. In other words, the release, as initially made, was an inter vivos release, by the Defendant, in relation to the whole of the estate or notional estate of the Plaintiff.
The legal representatives of the parties requested that I deal with the matter in Chambers. I have dealt with the power of the Court to deal with a matter in Chambers in my recent decision of Kelly v Kelly [2019] NSWSC 994. In addition to the matters to which I referred in that…

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 Austin v Austin

Details

AGLC: Austin v Austin [2019] NSWSC 1397
Case: [2019] NSWSC 1397
Decision Date: 30 August 2019

CaseChat Overview and Summary

In the matter of Austin v Austin, the dispute before the court involved a request for the approval of an inter vivos release made by the defendant regarding his rights to apply for a family provision order in relation to the estate of his wife, the plaintiff, in the event of her death. The case was heard in the Supreme Court of New South Wales. The defendant sought approval for the release to avoid any potential future litigation regarding his wife's estate. The court was tasked with determining the appropriate circumstances under which such a release could be approved, considering the parties' right to enter into the agreement and the implications of such an approval on their legal rights.

The legal issues before the court included the scope of the circumstances that should be considered when approving an inter vivos release, and whether the release should be approved despite no existing proceedings or other familial disputes between the parties. The court also had to balance the importance of the parties' right to enter into the agreement against the potential impact on their legal rights. Furthermore, the court had to consider the effect of an amended release proposed by the defendant, and whether such an amended release should be approved by the court.

The court found that the parties' right to enter into the agreement was significant, and that the circumstances under which an inter vivos release could be approved should be broad, encompassing cases where no other familial disputes exist. The court held that the release should be approved, given the lack of other disputes and the importance of the parties' right to enter into the agreement. The amended release proposed by the defendant was also approved by the court, as it appropriately reflected the intentions of the parties and did not unduly prejudice their legal rights. The court's decision ultimately ensured that the parties' agreement was recognised and upheld, while also protecting their legal rights in the event of the plaintiff's death.

Orders