Bolinger v Bell (No 2)

Case [2022] NSWSC 1495


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Bolinger v Bell (No 2); The Estate of Colin Bell [2022] NSWSC 1495
Hearing dates: 29 June, 8 September 2022; final written submissions ending 24 October 2022
Date of orders: 3 November 2022
Decision date: 03 November 2022
Jurisdiction:Equity
Before: Hallen J
Decision:

See [287]

Catchwords:

CIVIL PROCEDURE – Cross-vesting – Protracted family law proceedings transferred from Family Court of Australia to Supreme Court where there are Probate proceedings and family provision proceedings – Way in which to deal with the different proceedings in the Supreme Court – Separate proceedings, each seeking different relief and involving the same estate – Order that proceedings be heard consecutively

FAMILY LAW – PROPERTY – Application for interim property orders by notice of motion filed by Applicant, the wife of the deceased – Respondent, who is the interim administrator of deceased’s estate opposes application – Family law matter cross-vested to Supreme Court – Associated Probate and family provision order also sought – Limits on evidence as untested – Estate has the capacity to meet interim property order – Whether it is in the interests of justice to make an interim property order – Whether any interim property order by way of partial property settlement – Security for repayment agreed to be provided by applicant

Legislation Cited:

Civil Procedure Act 2005 (NSW) s 56

Family Law Act 1975 (Cth) ss 79, 80, 117, 121

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss 5, 7, 13

NSW Trustee and Guardian Act 2009 (NSW) ss 41, 72-73

Probate and Administration Act 1898 (NSW) ss 73, 74, 92A

Succession Act 2006 (NSW) ss 12, 62

Uniform Civil Procedure Rules 2005 (NSW) r 28.2, 28.5

Cases Cited:

Aviani v Loh (No 2) [2022] NSWSC 1148

Barnell & Barnell (2020) 60 Fam LR 377; [2020] FamCFAFC 102

Bevan & Bevan (2013) 279 FLR 1; [2013] FamCAFC 116

Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Boensch v Pascoe (2016) 349 ALR 193; [2016] NSWCA 191

Bollinger v Bell; The Estate of the Late Colin Bell [2022] NSWSC 486

Cao & Trong (No. 2) [2019] FamCA 941

Commissioner of Stamp Duties v Livingston (1964) 112 CLR 12

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Edgar & Strofield [2016] FamCAFC 93

Elias & Elias Pty Ltd atf the Elias Family Trust v Chidiac [2010] NSWSC 1364

Estate Hemmes; Cameron v Mead [2018] NSWSC 85

Fields & Smith (2015) FLC 93-638; [2015] FamCAFC 57

Gabel & Yardley (2008) 221 FLR 270; [2008] FamCAFC 162

Ghose v CX Reinsurance Company Ltd [2010] NSWSC 110

Gomez v Carrafa [2021] VSCA 37

Grace v Grace [2012] NSWSC 976

Grier & Malphas [2016] FamCAFC 84

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699

In the Marriage of Davidson (1994) 117 FLR 335

In the Marriage of Fisher (1986) 161 CLR 438; [1986]…

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AGLC
Bolinger v Bell (No 2) [2022] NSWSC 1495
Case
[2022] NSWSC 1495
Decision Date

CaseChat Overview and Summary

The parties in this case were Bolinger and Bell. The dispute involved protracted family law proceedings transferred from the Family Court of Australia to the Supreme Court due to the existence of probate and family provision proceedings. The nature of the dispute was to determine the appropriate manner in which to handle the different proceedings in the Supreme Court, specifically whether they should be heard consecutively or otherwise. The legal issues the court needed to decide included the limits on evidence in the cross-vested proceedings, the capacity of the estate to meet any interim property orders, and whether it was in the interests of justice to make such an order. Additionally, the court considered whether any interim property order could be made by way of a partial property settlement, and whether security for repayment would be provided by the applicant.

The court considered the limits on evidence, noting that it was untested and therefore the court had to rely on the submissions and affidavits provided by the parties. It was established that the estate had the capacity to meet any interim property order. The court then turned to whether it was in the interests of justice to make an interim property order, considering the circumstances of the case, including the need for security for repayment. The court found that it was in the interests of justice to make an interim property order, provided that the applicant agreed to provide security for repayment.

The court determined that the family law matter should be heard consecutively with the probate and family provision proceedings. This was to ensure that all issues could be resolved efficiently and effectively, while also taking into account the need for security for repayment. The court concluded that the proceedings should be heard consecutively to allow for a comprehensive resolution of all matters before the court. The court's reasoning was based on the need for a fair and just resolution of the dispute, taking into account the interests of all parties involved.

The final orders made by the court included the direction that the family law matter be heard consecutively with the probate and family provision proceedings, and that the applicant provide security for repayment. This allowed for a comprehensive and efficient resolution of the dispute, while also ensuring that the interests of all parties were taken into account.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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