Bracher v Jones (No 2) - [2022] NSWSC 134

Supreme Court

New South Wales

Medium Neutral Citation: Bracher v Jones (No 2) [2022] NSWSC 134
Hearing dates: 15 September 2021
Date of orders: 18 February 2022
Decision date: 18 February 2022
Jurisdiction: Equity
Before: Robb J
Decision:
1 The Court’s further orders in Proceedings No 2016/306898 are:
(1) Grant leave to the administrator (Administrator) appointed by order 1 in the Order signed by Robb J on 15 September 2021 (Order) to provide to the Court and to the parties a report (Report) in accordance with [27] of these reasons for judgment identifying all debts and other claims that she considers may be payable to the estate by any beneficiary of the estate.
(2) Grant leave to the parties to relist the proceedings by arrangement with the Associate to Robb J after the completion of the Report by the Administrator to seek directions concerning the determination of the liability of any beneficiary of the estate to pay to the Administrator any debts or other claims.
(3) Note that the leave granted by order 2 may be exercised in accordance with order 7 in the Order.
(4) Order the first defendant to pay personally to the plaintiff the plaintiff’s costs of the proceedings on the ordinary basis up to 8 June 2018 and on the indemnity basis thereafter.
2 The Court’s further orders in Proceedings No 2016/139606 are:
(1) the proceedings are dismissed.
(2) there be no order as to costs, with the intent that each party shall pay their own costs.

Catchwords:
SUCCESSION — Family provision — Application for leave to commence family provision application out of time and application for further family provision dismissed in circumstances where the testator had divided her estate with approximate equality between her two children both of whom were of relatively equivalent personal and financial circumstances — No point of principle
COSTS — Party/Party — Bases of quantification — Indemnity basis — Where defendant executor ordered to pay the plaintiff’s costs of proceedings to establish that the testator’s final will was invalid for lack of testamentary capacity and having been made under the undue influence of the defendant — Where the only parties interested in the testator’s estate were the plaintiff and the defendant, being the only children of the testator — Where the defendant was ordered to pay the plaintiff’s costs from a particular point in time for unreasonably failing to accept a Calderbank offer made by the plaintiff

Legislation Cited:
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Bracher v Jones [2020] NSWSC 1024
Coast Property Realty Pty Ltd v Falconer [2016] NSWSC 214
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225
Leichardt Municipal Council v Green [2004] NSWCA 341
Miwa Pty Ltd v Siantan Properties Pte Ltd (No 2) [2011] NSWCA 344
Re the Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Category: Principal judgment
Parties: Diane Kay Bracher (plaintiff)
Stephen Alan Jones (first defendant)
Benjamin Stephen Jones (second defendant)
Representation:
Counsel:
L…

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 Bracher v Jones (No 2)

Details

AGLC: Bracher v Jones (No 2) [2022] NSWSC 134
Case: [2022] NSWSC 134
Decision Date: 18 February 2022

CaseChat Overview and Summary

The case Bracher v Jones (No 2) involved a dispute over family provision claims. The plaintiff, Bracher, sought leave to commence a family provision application out of time and additional family provision against the defendant, Jones, who was the executor of their mother's estate. The dispute arose after the testator divided her estate equally between her two children, both of whom were in similar personal and financial circumstances. Bracher sought to challenge the fairness of the estate division, while Jones argued that there was no significant point of principle that warranted the court’s intervention.

The legal issues before the court centred on whether Bracher should be granted leave to commence the family provision application out of time and, if so, whether the court should grant further family provision. The court had to consider the circumstances under which such leave should be granted, particularly in cases where the testator had divided the estate equally. Additionally, the court needed to assess whether there were any exceptional circumstances that would justify varying the general rule against out-of-time applications.

In determining the case, the court held that there was no significant point of principle to warrant granting Bracher leave to commence the family provision application out of time. The court found that the testator had divided her estate with approximate equality between her two children, and both were in relatively equivalent personal and financial circumstances. As such, the court dismissed Bracher's application for leave and the application for further family provision. The court also ordered Jones to pay Bracher’s costs of establishing that the testator's final will was invalid for lack of testamentary capacity and undue influence. Furthermore, Jones was ordered to pay Bracher's costs from a specific point in time due to unreasonably failing to accept a Calderbank offer made by Bracher.

Orders