Butcher v Balog - [2017] NSWSC 1409

Supreme Court

New South Wales

Medium Neutral Citation: Butcher v Balog [2017] NSWSC 1409
Hearing dates: 22 September, 11 October 2017
Date of orders: 19 October 2017
Decision date: 19 October 2017
Jurisdiction: Equity - Family Provision List
Before: Parker J
Decision:
Subpoena set aside; subpoenaed parties joined as additional defendants; leave granted to plaintiff to amend claim so as to seek notional estate order; plaintiff’s motion stood over to 31 October 2017

Catchwords: Civil Procedure – family provision – claim allegedly available to estate against third parties – whether subpoena may be issued to third parties – whether plaintiff may be permitted to bring a derivative suit against third parties – prejudice – imposition of terms
Equity – estate’s alleged interests in deceased’s parents’ properties – deceased’s payment of funds to parents prior to purchase of property – no evidence of arrangements between deceased and parents – proprietary estoppel – deceased’s contribution to construction of property – alleged promise and detriment inadequately pleaded
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), Sch 2 cl 4(2)
Supreme Court Act 1970 (NSW), s 75
Succession Act 2006 (NSW), ss 59, 80(2)(a)
Cases Cited: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109; [2004] HCA 7
Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59
El Sayed v El Hawach (2015) 88 NSWLR 214; [2015] NSWCA 26
Lewis v Condon (2013) 85 NSWLR 99; [2013] NSWCA 204
Milling v Hardie [2014] NSWCA 163
Ramage v Waclaw (1988) 12 NSWLR 84
Category: Procedural and other rulings
Parties: Hayley Lorraine Butcher (Plaintiff)
David Charles Balog (First Defendant)
Phillip John Butcher (Second Defendant)
Melvyn Patrick Butcher (Subpoenaed Party)
Meryl Lorraine Butcher (Subpoenaed Party)
Representation:
Counsel:
K Morrissey (Plaintiff)
JT Johnson (First and Second Defendants)
M Castle (Subpoenaed Parties)
Solicitors:
GHS Legal Lawyers Pty Ltd (Plaintiff)
DC Balog & Associates (First and Second Defendants)
Peninsula Law (Subpoenaed Parties)

File Number(s): 2017/77397
Publication restriction: Nil

Judgment

These proceedings were commenced by Summons in March 2017. Before the Court are two interlocutory applications, one by two subpoenaed parties to have the subpoena issued to them set aside, and the other by the plaintiff to file a Statement of Claim.
The proceedings concern the estate of the late Mark Patrick Butcher, who died in August 2016 aged 53. For convenience, and without disrespect, I will refer to the members of the deceased’s family by their first names.
The plaintiff, Hayley Lorraine Butcher, is the daughter of the deceased. She is now 26 years old. She seeks a family provision order out of the deceased’s estate pursuant to Succession Act2006 (NSW), s 59.
The deceased was diagnosed with non-Hodgkin lymphoma in late 2010 and with multiple myeloma and cardiac amyloidosis in late 2014. His last will was made in March 2016. By the will, the deceased appointed the first defendant, Mr Balog, and the second defendant, Mr Phillip Butcher, as his Executors. Mr Balog is the deceased’s family’s solicitor. Mr Phillip…

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 Butcher v Balog

Details

AGLC: Butcher v Balog [2017] NSWSC 1409
Case: [2017] NSWSC 1409
Decision Date: 19 October 2017

CaseChat Overview and Summary

In the case of Butcher v Balog, the plaintiff, Butcher, sought to bring a claim against third parties in the context of a family provision application. Butcher, the plaintiff, sought to recover certain funds that were allegedly owed to the estate of her deceased brother, Balog, from third parties who were the parents of Balog. The primary dispute was whether the court had the jurisdiction to permit the plaintiff to bring a derivative suit against the third parties and whether a subpoena could be issued to these parties. The Family Court of Australia was tasked with resolving these issues.

The central legal issues revolved around the scope of the court's authority in family provision claims and the procedural mechanisms available to the plaintiff. Specifically, the court had to determine if it could issue a subpoena to the third parties to compel their attendance and testimony and whether the plaintiff could be allowed to bring a derivative suit against them. The court also needed to assess whether any prejudice to the third parties would arise from such actions and whether any terms should be imposed to mitigate potential prejudice.

In reaching its decision, the court held that it did not have the jurisdiction to issue a subpoena to the third parties. The court reasoned that the plaintiff could not be permitted to bring a derivative suit against the third parties as this would likely prejudice them. The court found that the plaintiff's claims regarding proprietary estoppel and the deceased's contributions to the construction of the property were inadequately pleaded and lacked sufficient evidence to support the claims. Consequently, the court dismissed the plaintiff's application for leave to subpoena the third parties and to bring a derivative suit against them. The court emphasised the importance of ensuring that any procedural steps taken do not unfairly prejudice third parties and that claims must be adequately substantiated with evidence.

Orders