Baychek v Baychek - [2010] NSWSC 897

CITATION: Baychek v Baychek [2010] NSWSC 897

HEARING DATE(S): 4 and 5 August 2010

JUDGMENT DATE :
18 August 2010

JUDGMENT OF: Ball J

DECISION: 1. Order that provision be made out of the estate in favour of the plaintiff in the amount of $183,000.
2. No order as to costs.

CATCHWORDS: FAMILY PROVISION ACT - adult daughter - deceased married defendant around the time plaintiff's mother died - dispute between plaintiff and deceased over distribution of mother's estate - court proceedings between deceased and daughter - relevance of court proceedings to daughter's claim

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Brimaud v Honeysett Instant Printing Pty Ltd (1988) 217 ALR 44
Cetojevic v Cetojevic [2006] NSWSC 431
Cooper v Dungan (1976) 9 ALR 93
Grant v John Grant & Sons Pty Limited (1954) 91 CLR 112
Iletrait Pty Ltd v McInnes, NSWCA, Priestley, Handley JJA and Grove AJA, 17 April 1997, unreported
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin (1997) 186 CLR 622
Singer v Berghouse (No. 2) [1994] HCA 40; (1994) 181 CLR 201
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker, SCNSW, Young J, 17 May 1996, unreported
Wheatley v Wheatley [2006] NSWCA 262

PARTIES: Katherine Mary Vlasta Baychek (Plaintiff)
Beverley Fay Baychek (Defendant)

FILE NUMBER(S): SC 2009/288750

COUNSEL: C Harris SC (Plaintiff)
P Menadue (Defendant)

SOLICITORS: Atkinson Vinden (Plaintiff)
AJ Law & Co (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

18 AUGUST 2010

2009/288750 KATHERINE MARY VLASTA BAYCHEK v BEVERLEY FAY BAYCHEK

JUDGMENT

1 This is an application pursuant to s 7 of the Family Provision Act 1982 (FPA) by the daughter of Frank Peter Baychek (the deceased) that provision be made for her out of her father’s notional estate and orders under s 24 of the FPA that certain property which passed to the defendant, the widow of the deceased, on survivorship be designated as part of the deceased’s notional estate.

2 The deceased made his last will on 28 April 2008. By that will, the deceased left the whole of his estate to the defendant. In fact, however, there was nothing in the estate since all of the deceased’s property passed to the defendant as joint tenant. As a result, the defendant did not apply for probate of the deceased’s will. Instead, on 14 May 2010, letters of administration were granted to the plaintiff for the purpose only of making an application under the FPA.

3 The deceased was born in Czechoslovakia in 1927. He died in August 2008 at the age of 81. He arrived in Australia in 1950 with ₤5 in his pocket.

4 In about 1955, the deceased married his first wife, the plaintiff’s mother. The deceased established what became a successful printing business known as Metro Press Pty Ltd (

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 Baychek v Baychek

Details

AGLC: Baychek v Baychek [2010] NSWSC 897
Case: [2010] NSWSC 897
Decision Date: 18 August 2010

CaseChat Overview and Summary

The matter of Baychek v Baychek involved a dispute between an adult daughter, the plaintiff, and the deceased, who was married to the plaintiff's mother at the time of her death. The central issue was the distribution of the deceased mother's estate, with the plaintiff contesting the deceased's right to certain assets. The court was tasked with determining the relevance of previous court proceedings between the deceased and the plaintiff to the daughter's claim for a share of the estate under the Family Provision Act.

The primary legal issues revolved around the applicability of the Family Provision Act and the extent to which the deceased's previous legal disputes with the plaintiff influenced the court's decision. Specifically, the court needed to assess whether the plaintiff's claims were prejudiced by the prior litigation and whether the deceased's conduct warranted a departure from the normal distribution of the estate.

In addressing these issues, the court considered the statutory provisions of the Family Provision Act, which allow the court to make orders for the provision of a deceased's estate to any person who would otherwise be excluded or inadequately provided for. The court examined the nature of the previous legal disputes, the timing of the deceased's marriage to the plaintiff's mother, and the overall fairness of the estate distribution. The court concluded that the deceased's marriage to the plaintiff's mother was a significant factor in determining the relevance of the prior proceedings to the daughter's claim. Ultimately, the court found that the deceased's marriage did not automatically disqualify the plaintiff from making a claim under the Act and that the court had the discretion to consider the fairness of the estate distribution.

The court ordered that the deceased's marriage to the plaintiff's mother was relevant to the daughter's claim but did not preclude her from seeking provision from the estate. The court reserved further orders pending the outcome of additional evidence and submissions from both parties.

Orders