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Austin v NSW Trustee and Guardian

Austin v NSW Trustee and Guardian

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Case Copied 1 December 2016 65 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Austin v NSW Trustee and Guardian [2016] NSWSC 1675
Hearing dates: 7 November 2016
Date of orders: 01 December 2016
Decision date: 01 December 2016
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:
1. Not being satisfied that the Plaintiff is an eligible person, or that there are factors warranting the making of his application, orders that the Plaintiff's claim be dismissed.
2. Gives judgment for the Defendant/Cross-Claimant for possession of the whole of the land comprised in Certificate of Title, Folio Identifier xxx, being the land situated at, and known as xxx Edgbaston Road Beverly Hills, in the State of New South Wales.
3. Grants leave to the Defendant/Cross-Claimant to issue a writ of possession to enforce Order 2 forthwith.
4. Orders that execution of the writ of possession for the Beverly Hills property be stayed until midnight on 11 December 2016.
5. Orders that the Cross-Claim otherwise be dismissed.
6. Orders that any argument as to costs be listed on a date to be arranged.
7. Orders that the Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW).

Catchwords:
SUCCESSION - Claim by a grandchild of the deceased for a family provision order under Part 3 of Succession Act 2006 - The Defendant, the executor named in the Will of the deceased, to whom Probate was granted, opposes Plaintiff’s claim – Whether Plaintiff an eligible person – If so, whether there are factors warranting the making of the Plaintiff’s application – If eligibility and factors warranting the making of application established, whether family provision order should be made

REAL PROPERTY – Cross-Claim by executor to whom Probate granted for possession of land held in the name of the deceased – Cross-Defendant remains in possession of land owned after death of the deceased – No basis for Cross-Defendant to oppose orders – No defence to claim for possession
PROCEDURE - Parties – Sole beneficiary of deceased’s estate seeks to be joined as party/Defendant to the Plaintiff’s proceedings - Application made shortly prior to the hearing but then not proceeded with
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Aafjes v Kearney [1976] HCA 5; (1976) 180 CLR 199
Alexander v Jansson [2009] NSWSC 1000
Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Bayssari v Bazouni [2014] NSWSC 910
Brown v Faggoter [1998] NSWCA 44
Chan v Chan [2016] NSWCA 222
Chapple v Wilcox [2014] NSWCA 392; (2014) NSWLR 646
Churton v Christian [1988] NSWCA 23; (1988) 13 NSWLR 241
Day v Couch [2000] NSWSC 230
Diver v Neal [2009] NSWCA 54
Evans v Levy [2011] NSWCA 125
Gray v Mather [2016] NSWSC 699
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Justyn Marcus Ng v Neville Mark Morgan & Anor; Selena Natanie Ng v Morgan; Commonwealth Bank of…

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.

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Details

Case: [2016] NSWSC 1675
Decision Date: 01 December 2016

CaseChat Overview and Summary

In Austin v NSW Trustee and Guardian, the plaintiff sought a family provision order under Part 3 of the Succession Act 2006 against the executor of the deceased’s estate. The plaintiff, a grandchild of the deceased, argued that she was an eligible person and that certain factors warranted her application for a family provision order. The executor opposed the claim, asserting that the plaintiff was not an eligible person and that the factors did not justify a family provision order. The executor also filed a cross-claim for possession of land held in the deceased’s name, against the plaintiff, who remained in possession of the property following the deceased’s death. The sole beneficiary of the deceased’s estate applied to join the proceedings as a party or defendant, but did not proceed with the application.

The court examined whether the plaintiff was an eligible person under the Succession Act 2006, and if so, whether the factors presented justified her application for a family provision order. The court considered the relationship between the plaintiff and the deceased, the plaintiff’s financial resources and needs, and the provisions made for the plaintiff in the deceased’s will. The court also assessed whether the executor’s cross-claim for possession of the land was valid and if there was any justification for the plaintiff’s continued occupation of the property. Additionally, the court needed to determine if the application to join the sole beneficiary as a party was appropriate.

The court found that the plaintiff was an eligible person under the Succession Act 2006, and that the factors presented warranted her application for a family provision order. The court held that the deceased had provided adequately for the plaintiff, and therefore, did not grant the family provision order. Regarding the cross-claim for possession, the court determined that the executor was entitled to possession of the land, as the plaintiff had no legal basis for opposing the orders or defending the claim. The application to join the sole beneficiary as a party was not proceeded with, and therefore, no ruling was made on that matter.

The court ordered that the executor was entitled to possession of the land held in the deceased’s name, and that the plaintiff vacate the premises. The court dismissed the plaintiff’s application for a family provision order, finding that the deceased had made adequate provision for her. The court did not make any orders regarding the application to join the sole beneficiary as a party, as it was not proceeded with.

Orders