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 2005JURISDICTION: 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 41CASES 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 548PARTIES: 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…
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- AGLC
- Blackett v Darcy [2005] NSWSC 65
- Case
- [2005] NSWSC 65
- Decision Date
CaseChat Overview and Summary
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.
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