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Blackett v Darcy

Blackett v Darcy

Case [2005] NSWSC 65 17 February 2005

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Reported Decision:
62 NSWLR 392

New South Wales

Supreme Court

CITATION:
Blackett v Darcy [2005] NSWSC 65
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 31/01/05; 01/02/05

JUDGMENT DATE :

17 February 2005

JURISDICTION:
Equity Division

JUDGMENT OF:
Young CJ in Eq

DECISION:
Orders made in favour of plaintiffs in 5472/02; 4636/04 dismissed with costs out of estate.

CATCHWORDS:
GIFTS [8]- Imperfect gift- Cheque- Not cashed before donor's death- Paid by bank day after death- Gift effective. GIFTS [9]- Imperfect gift- One of two donees appointed executor- Gift conditional on equitable obligation to third party- Whether rule in Strong v Bird applies. PRIVATE INTERNATIONAL LAW [12]- Domicile- Domicile of choice- 15 days residence sufficient in circumstances to change domicile. SUCCESSION [290]- Jurisdiction- Testator domiciled in Queensland with Queensland realty and personalty in NSW- Only latter property able to be subject of order.

LEGISLATION CITED:
Cheques Act 1986 (Cth) ss 10, 88, 90
Domicile Act 1982 (Cth) s 10
Family Provision Act 1982 s 7, 11
Succession Act 1981 (Qld) s 41

CASES CITED:
Anning v Anning (1907) 4 CLR 1049
Balajan v Nikitin (1994) 35 NSWLR 51
Barns v Barns (2003) 214 CLR 169
Beffer v Steed 17.12.1996, unreported BC 9606094
T Choithram International SA v Pagaroni [2001] 1 WLR 1
Cope v Keene (1968) 118 CLR 1
Djordjevic v Djordjevic [1999] NSWSC 1223
George v Cluning (1979) 28 ALR 57
Gill v Gill (1921) 21 SR (NSW) 400
Hewitt v Kaye (1868) LR 6 Eq 198
Hill v Van Erp (1997) 188 CLR 159
Hughes v National Trustees etc Ltd (1979) 143 CLR 134
Hyland v Hyland (1971) 18 FLR 461 (NSWCA)
Re Beak's Estate (1872) LR 13 Eq 489
Re Halley (1959) 43 MPR 79
Re James [1935] Ch 449
Re Keene (1967) 86 WN (NSW) (Pt 1) 317
Re Pink [1912] 2 Ch 528
Re Swinburne [1926] 1 Ch 38
Strong v Bird (1874) LR 18 Eq 315
Tate v Hilbert (1793) 2 Ves 111; 30 ER 548

PARTIES:
5472/02 Lorraine Mavis Blackett (P1)
Jocelyn Marie Goninan (P2)
Ann Lynette Darcy (D)
4636/04 Allan Brett Blackett by his Tutor Sandra June Brennan (P)
Ann Lynette Darcy (D)

FILE NUMBER(S):
SC 5472/02; 4636/04

COUNSEL:
5472/02 G M McGrath (P)
J R Wilson SC (D)
4636/04 C P Locke (P)
J R Wilson SC (D)

SOLICITORS:
5472/02 Hannaford Cox Connellan & McFarland (P)
George Bassil & Associates (D)
4636/04 A E Dunne (P)
George Bassil & Associates (D)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Thursday 17 February 2005

5472/02 – BLACKETT v DARCY
4636/04 – BLACKETT v DARCY

JUDGMENT

1 HIS HONOUR: I am dealing with two sets of proceedings for provision under s 7 of the Family Provision Act 1982 in respect of the estate of the late Noel Albert Blackett.

2 The initial application in proceedings 5472/02 was made by two daughters, Lorraine Mavis…

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 Blackett v Darcy

Details

AGLC: Blackett v Darcy [2005] NSWSC 65
Case: [2005] NSWSC 65
Decision Date: 17 February 2005

CaseChat Overview and Summary

In the case of Blackett v Darcy, the dispute centred around the validity of a cheque given as a gift, which was not cashed before the donor's death but was subsequently honoured by the bank the day after the donor's death. The deceased had also appointed one of the donees as an executor, creating a situation where the donee's entitlement to the gift was conditional upon an equitable obligation to a third party. The parties contested whether the rule in Strong v Bird applied in this scenario. Additionally, the case examined the deceased's domicile and the implications of this for the jurisdiction of the court over both the real and personal property of the deceased. The deceased had been domiciled in Queensland but held both real and personal property in New South Wales, raising questions about which assets could be subject to the court's orders.

The legal issues before the court included whether the cheque constituted a valid gift despite not being cashed before the donor's death and whether the rule in Strong v Bird precluded the donee from benefiting from the gift. Furthermore, the court had to determine the deceased's domicile at the time of death and whether this affected the jurisdiction over the property located in New South Wales. The central question was whether the deceased's 15-day residence in Queensland was sufficient to change his domicile from New South Wales, thereby affecting the court's jurisdiction over his estate.

The court held that the cheque was a valid gift as it was honoured by the bank the day after the donor's death. It found that the rule in Strong v Bird did not apply in this case, allowing the donee to benefit from the gift despite being appointed as an executor. Regarding the deceased's domicile, the court determined that the deceased had indeed changed his domicile to Queensland, based on his 15-day residence there. However, this change in domicile only affected the jurisdiction over the deceased's personal property, not the real property located in New South Wales. Consequently, the court's order pertained only to the personal property, leaving the jurisdictional issues regarding the real property unresolved.

The final orders of the court confirmed the validity of the gift and the donee's entitlement to the cheque. It also clarified that the deceased's change of domicile to Queensland impacted the jurisdiction over the personal property but did not extend to the real property in New South Wales. This decision underscored the importance of understanding the nuances of domicile and jurisdiction in succession matters, particularly when property is held in different jurisdictions.

Orders