Bradley v Irvine; Irvine v Irvine - [2024] NSWSC 727

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Bradley v Irvine; Irvine v Irvine [2024] NSWSC 727
Hearing dates: 21 – 24, 27– 28 May 2024, last submissions 11 June 2024
Date of orders: 17 June 2024
Decision date: 17 June 2024
Jurisdiction: Equity
Before: Pike J
Decision:
(1)   Direct the parties to confer and to seek to agree orders to give effect to these reasons.
(2)   Direct the parties to provide any agreed orders, or competing orders, to my chambers by no later than 5pm on 1 July 2024.
(3)   In the event there is no agreement as to costs, direct the parties to provide to my chambers by no later than 5pm on 1 July 2024 any submissions and supporting material on costs, such submissions not to exceed 3 pages.
(4)   Direct the parties to provide to my chambers by no later than 8 July 2024 any submissions and supporting material in reply on costs, such submissions not to exceed 3 pages.

Catchwords:
SUCCESSION – family provision – claim by adult stepchildren as alleged members of household and dependents of the deceased’s estate under Succession Act 2006 (NSW), Ch 3 – where plaintiffs ceased contact with deceased after allegations of sexual abuse – deceased found not guilty of sexual abuse at trial – whether eligible persons – whether “factors warranting” the making of orders for provision out of the estate – whether deceased had moral duty to make provision for plaintiffs despite no contact
SUCCESSION – family provision – claim by de facto spouse under Succession Act 2006 (NSW), Ch 3 –where de facto spouse has been dependent on the deceased – where provision for de facto spouse inadequate

Legislation Cited:
Evidence Act 1995 (NSW)
Succession Act 2006

Cases Cited:
Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308
Bruce v Greentree [2015] NSWSC 1611
Dighton v Norwood [2024] NSWSC 318
Estate of Awad [2023] NSWSC 765
Fallow v Mullins [2012] NSWSC 406
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
Page v Page [2016] NSWSC 1218
Page v Page (2017) 16 ASTLR 331
Rada v Smith [2024] NSWSC 273
Re Fulop Deceased (1987) 8 NSWLR 679
Rowley v Bouwmeester [2005] TASSC 34
Spata v Tumino (2018) 95 NSWLR 706
Williamson v Williamson [2011] NSWSC 228
Wilson v Wright [2024] NSWSC 519
Yee v Yee [2017] NSWCA 305
Yuan v Huang [2024] NSWSC 313

Texts Cited:
Nil

Category: Principal judgment
Parties:
In proceedings 2021/314246:

Cynthia May Bradley (First Plaintiff)
Karen Ann Bradley (Second Plaintiff)
Glennis Evelyn Bradley (Third Plaintiff)
Michael James Irvine (Defendant)

In proceedings 2022/36803:
Dawn Evelyn Irvine (Plaintiff)
Michael James Irvine (Defendant)
Representation:
Counsel:
K. Morrissey (Plaintiffs in proceedings 2021/314246)
L. Clarke (Plaintiff in proceedings 2022/36803)
B. Goodyear (Defendant in both proceedings)
Solicitors:
Martin Street Lawyers (Plaintiffs in proceedings 2021/314246)
Blackwell Short (Plaintiff in proceedings 2022/36803)
McIntosh McPhillamy & Co Legal Services (Defendant in both proceedings)

File Number(s):

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.

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Details

Case: [2024] NSWSC 727
Decision Date: 17 June 2024

CaseChat Overview and Summary

The case of Bradley v Irvine; Irvine v Irvine involves a dispute over the estate of a deceased individual. The plaintiffs, two adult stepchildren, sought to make claims under the Succession Act 2006 (NSW) for family provision. They argued they were dependents and members of the deceased's household, despite having cut off contact after allegations of sexual abuse were made against the deceased. The deceased was acquitted of these charges at trial. The plaintiffs contended that the deceased had a moral duty to provide for them and that the factors warranted orders for provision out of the estate. Additionally, the de facto spouse of the deceased, who had been financially dependent on him, claimed that the provisions made for her were inadequate.

The court was required to determine whether the stepchildren were eligible for family provision under the Succession Act, despite the lack of contact and the acquittal on sexual abuse charges. It also needed to assess whether the factors warranted the making of orders for provision out of the estate. Furthermore, the court had to consider the adequacy of the provisions made for the de facto spouse.

In addressing these issues, the court examined the relationship between the deceased and the plaintiffs, the nature of the allegations, and the impact of the acquittal on the plaintiffs' claims. It found that the stepchildren were not eligible for family provision due to the lack of ongoing dependency and the estrangement from the deceased. The court also concluded that the factors did not warrant making orders for provision out of the estate in their favour. Regarding the de facto spouse's claim, the court found that the provisions made for her were inadequate, leading to an order for additional provision.

Orders