(i) Orders, pursuant to Uniform Civil Procedure Rules 2005 (NSW), rule 7.10(2)(b), that the Defendant, Irene Greentree, be appointed to represent the deceased’s estate and notional estate for the purposes of these proceedings.
(ii) Orders that any order entered, or made, in the proceedings binds the deceased person’s estate and notional estate to the same extent as the estate and notional estate would have been bound had a personal representative of the deceased person to whom administration had been granted been a party to the proceedings.
(iii) Orders that the application to amend the Statement of Claim be dismissed.
(iv) Orders that the whole of the Plaintiffs’ Statement of Claim be dismissed.
(v) Orders that the caveat lodged by the first Plaintiff on title to the land situated at and known as Folio Identifier 23/xxx, and Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, be withdrawn within 14 days of the date of this order.
(vi) Orders that the Plaintiffs deliver up vacant possession of the whole of the land situated at and known as Folio Identifier 23/xxx, and the whole of the land in Folio Identifier 30/xxx at Yarrowitch, in the state of New South Wales, within 28 days of the date of this order or within such other time as the Defendant agrees in writing.
(vii) Orders that, in the event that the Plaintiffs fail, or either of them fails, to deliver up vacant possession of the land identified in Order (vi) above, in accordance with order (vi), a writ of possession be issued forthwith in favour of the Defendant.
(viii) Orders that any costs incurred by the Defendant thrown away by the dismissal of the trust claim shall be paid by the Plaintiffs.
(ix) Directs that the Exhibits be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rule 31.16A and rule 33.10), and Practice Note No SC Gen 18 (Para 26) following the determination of the costs of the proceedings.
(x) The parties are to be heard on how the burden of costs of the balance of the proceedings is to be borne.
Catchwords:
SUCCESSION – TRUSTS – Claim for resulting and/or constructive trust in respect of two blocks of land in which the deceased and the Defendant were joint tenants – Prior to hearing, the Defendant and the court informed that Plaintiffs not continuing with trust claim – Trust claim to be dismissed
SUCCESSION – FAMILY PROVISION – The Plaintiffs, each of whom is a child of the deceased, apply for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – Proceedings not commenced within the time prescribed by the Act for the making of the application – The Defendant is the widow…
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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AGLC
Bruce v Greentree [2015] NSWSC 1611
Case
[2015] NSWSC 1611
Decision Date
CaseChat Overview and Summary
The case of Bruce v Greentree was heard in the Supreme Court of New South Wales. The plaintiffs, who are the children of the deceased, sought to establish a resulting or constructive trust in respect of two blocks of land held as joint tenants with the defendant, who is the widow of the deceased. This claim was abandoned prior to the hearing, and the court dismissed the trust claim. The plaintiffs also sought a family provision order under Chapter 3 of the Succession Act 2006 (NSW), arguing that the defendant had not made adequate and proper provision for them. The plaintiffs' application for a family provision order was out of time, and they sought leave to amend their Statement of Claim to assert that part of the proceeds from the sale of jointly held property should be considered the actual estate of the deceased. Alternatively, they sought that the property be designated as a notional estate of small value. The central issues before the court were whether there was sufficient cause to extend the time for making the application and whether the plaintiffs had shown that adequate and proper provision had not been made for them.
The court considered the legal framework governing family provision orders and the circumstances of the case. The court noted that the plaintiffs' application was out of time, but they sought leave to amend their Statement of Claim. The court had to determine whether there was a sufficient basis for extending the time for the application and whether the plaintiffs had demonstrated that the deceased had not made adequate and proper provision for them. The court also examined the relevance of an open offer made on behalf of the plaintiffs during the proceedings, which could potentially impact the outcome of the family provision application. Ultimately, the court found that there was no sufficient cause to extend the time for the family provision application, and the plaintiffs had not demonstrated that adequate and proper provision had not been made for them. The court dismissed the family provision application.