Bose v Bose - [2013] NSWSC 327

Supreme Court

New South Wales

Medium Neutral Citation: Bose v Bose [2013] NSWSC 327
Hearing dates: 25, 28 September 2012 and 26 March 2013
Decision date: 26 March 2013
Jurisdiction: Equity Division
Before: Gzell J
Decision:
Further Amended Summons dismissed with no order as to plaintiff's costs. Disbursements out of estate for self-represented defendant.

Catchwords: SUCCESSION - Family Provision and Maintenance - Circumstances precluding relief - Uniform Civil Procedure Rules 2005, Pt 54 - whether defendant executor and trustee should be ordered to pay most of balance of estate to plaintiff his former wife to be held in trust for their daughter - whether a departure from proper administration - whether an extension of time to make application by daughter under Family Provision Act 1982 should be granted under s 16 - entire estate left to daughter at 21 with power of advancement by executor and trustee
Legislation Cited: Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Allchin v Allchin [2012] NSWSC 1028
David v Frowd (1833) 1 My & K 200 at 208; 39 ER 657
Fancett v Ware (Supreme Court of New South Wales, 3 June 1996, unreported)
Fitzpatrick v Waring (1882) 11 LR Ir 35, 44
Gonzalez v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 211
Hudson v Gray (1927) 39 CLR 473
Lewis v Lewis [2001] NSWSC 321
Re Hazeldine's Trusts [1908] 1 Ch 34
Re Gaydon [2001] NSWSC 473
Re Royle (1889) 43 Ch D 18
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Suffolk v Lawrence (1884) 32 WR 899
Templeton v Leviathan Pty Ltd (1921) 30 CLR 34
Westfield QLD No 1 Pty Ltd v Lend Lease Real Estate Investments Ltd [2008] NSWSC 516
Category: Principal judgment
Parties: Shruti Bose (First plaintiff)
Sudarshana Bose (Second plaintiff)
Satyajit Bose (Defendant)
Representation:
Counsel:
P O'Loughlin (Plaintiffs)
Solicitors:
Beilby Poulden Costello (Plaintiffs)

25 and 28 September 2012:
Hurlstone Park Legal (Defendant)
26 March 2013:
Defendant self-represented by telephone

File Number(s): SC 2010/387508

EX TEMPORE Judgment

The plaintiff seeks, by a further amended summons, various forms of relief. The principal relief is in relation to the estate of the late Satyakam Bose. The deceased appointed his brother, Satyajit Bose, his executor and trustee. What is sought is that the executor be ordered to get in the proceeds of all policies in the name of the deceased with the AMP Life Limited and to pay those funds to the plaintiff to be added to an existing trust for the benefit of the daughter of the plaintiff and the deceased.

Clause 7(d) of the will, of which probate was granted to the defendant, is in the following terms:

"POWER in respect of all or any moneys requiring investment in my estate to invest such moneys in the name of my Trustee or under the legal control of my Trustee (in the name of any nominee for my Trustee) in any one or more of the…

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 Bose v Bose

Details

AGLC: Bose v Bose [2013] NSWSC 327
Case: [2013] NSWSC 327
Decision Date: 26 March 2013

CaseChat Overview and Summary

The parties involved in the case of Bose v Bose are Bose, the plaintiff, and Bose, the defendant. The dispute pertains to the distribution of the estate left by the deceased, with the plaintiff seeking an order for the defendant, who is the executor and trustee, to pay a significant portion of the estate balance to the plaintiff, the former wife. This amount is to be held in trust for their daughter. The case was heard in the Supreme Court of Victoria. The central legal issues that the court had to decide were whether the defendant, as executor and trustee, should be compelled to make the requested payment to the plaintiff, and if this would constitute a deviation from the proper administration of the estate. Additionally, the court needed to determine if an extension of time should be granted to the daughter to make an application under the Family Provision Act 1982, as per section 16 of the Act. The entire estate was left to the daughter upon her reaching the age of 21, with the executor and trustee having a power of advancement.

The court examined the relevant provisions of the Family Provision Act 1982, as well as the Uniform Civil Procedure Rules 2005, Part 54, to assess the plaintiff's application. The court considered the circumstances under which relief may be precluded and the factors that should be taken into account when making a decision. The court found that the plaintiff had failed to demonstrate any exceptional circumstances that would warrant an order against the defendant, and that the defendant had acted within their discretion as executor and trustee. The court also held that an extension of time for the daughter to make an application under the Family Provision Act 1982 should not be granted, as the daughter had not provided sufficient justification for the delay.

In light of the above findings, the court dismissed the plaintiff's application. The court held that the defendant, as executor and trustee, was not required to make the requested payment to the plaintiff, and that this would not constitute a departure from the proper administration of the estate. The court further held that an extension of time for the daughter to make an application under the Family Provision Act 1982 should not be granted. As a result, the plaintiff's application was dismissed, and no orders were made in favour of the plaintiff. The estate was to be distributed in accordance with the deceased's will, with the daughter receiving the entire estate upon reaching the age of 21, subject to the executor and trustee's power of advancement.

Orders