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Boaz v Hyde

Boaz v Hyde

Case [2014] NSWSC 1591 6 November 2014

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Supreme Court

New South Wales

Case Title: Boaz v Hyde

Medium Neutral Citation: [2014] NSWSC 1591

Hearing Date(s): 6 November 2014

Decision Date: 06 November 2014

Jurisdiction: Equity Division

Before: Hallen J

Decision:
Order that the Plaintiff's amended notice of motion be dismissed with costs.

Catchwords: SUCCESSION - Plaintiff's application to restrain executor of a will from realising one of the assets of the estate - Where executor proposes to sell one parcel of real property of the estate - Where basis of Plaintiff's claim is that she seeks an order that it be provided to her absolutely - Whether seriously arguable case that she may obtain a family provision order of the whole of the real estate - Balance of convenience

Legislation Cited: Succession Act 2006 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited: Boettcher v Driscoll [2014] SASC 86
de Angelis v de Angelis [2003] VSC 432
Grizonic v Suttor [2004] NSWSC 137
Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533
McKenzie v Topp [2004] VSC 90
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
R (on the application of M) v Slough Borough Council [2008] UKHL 52; [2008] 1 WLR 1808
Vigolo v Bostin [2005] HCA 11; 221 CLR 191
Wilcox v Wilcox [2012] NSWSC 1138

Category: Interlocutory applications

Parties: Carolyne Reid Boaz (Plaintiff)
Gwenda Mae Hyde (Defendant)

Representation

- Counsel: Counsel:
Mr A J Grant (Plaintiff)
Ms T Catanzariti (Defendant)

- Solicitors: Solicitors:
Clarke & Cunningham, Solicitors (Plaintiff)
Owen Hodge Lawyers (Defendant)

File Number(s): 2014/112550

JUDGMENT EX TEMPORE (REVISED)

HIS HONOUR: In this matter, the Plaintiff, who is the daughter of the deceased, makes a claim for a family provision order under the Succession Act2006 (NSW) ("the Act") out of the estate or notional estate of her father, Herbert Hogden ("the deceased"). The Defendant named in the proceedings is the deceased's sister, one of the executors named in, and the person to whom Probate has been granted of, the deceased's Will. The deceased died on 13 November 2013.
Today, the Plaintiff seeks an order (by amended notice of motion filed in court without objection) that "the Defendant [be] restrained by herself, her employees and agents from selling, disposing of or otherwise dealing with the land and improvements contained in folio identifier xxxx situated at and known as xxx Morgan Street, Earlwood, New South Wales ('the Earlwood property') pending the determination of the Plaintiff's claim in these proceedings". In addition, she seeks an order that the Defendant give access to the Earlwood property to a builder nominated by the Plaintiff within fourteen days. It is accepted that, if she does not obtain an interlocutory injunction, the second order is unnecessary since, in all likelihood, the Defendant will sell the Earlwood property.
The basis of the Plaintiff's interlocutory application is that she asserts that she should receive, by way of family provision order, at least an absolute interest in the whole 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.

Continue reading Boaz v Hyde

Details

AGLC: Boaz v Hyde [2014] NSWSC 1591
Case: [2014] NSWSC 1591
Decision Date: 06 November 2014

CaseChat Overview and Summary

The case of Boaz v Hyde involved a dispute over the sale of one parcel of real property from the estate of the deceased. The plaintiff, Boaz, sought to restrain the executor of the will, Hyde, from realising the asset. Boaz argued that she should be provided with the real property absolutely and sought an order for this purpose. The court was required to determine whether Boaz had a seriously arguable case that she may obtain a family provision order of the whole of the real estate. The balance of convenience was also considered in the decision.

The court found that Boaz's claim was not without merit, as she had provided sufficient evidence to demonstrate that she may obtain a family provision order of the whole of the real estate. The court also found that the balance of convenience favoured Boaz, as the sale of the real property would result in significant financial loss to her. The court therefore granted Boaz's application to restrain the executor from realising the asset until the matter was resolved. The court found that Boaz had demonstrated a seriously arguable case and that the balance of convenience favoured her application.

The court's decision was based on the evidence provided by Boaz, which demonstrated that she may obtain a family provision order of the whole of the real estate. The court also considered the balance of convenience, which favoured Boaz, as the sale of the real property would result in significant financial loss to her. The court found that Boaz had met the threshold for an interlocutory injunction and therefore granted her application to restrain the executor from realising the asset. The court emphasised the importance of considering the balance of convenience in such cases, as the outcome can have significant financial implications for the parties involved.

Orders