Cassegrain v Cassegrain - [2003] NSWSC 402

CITATION: CASSEGRAIN v CASSEGRAIN & ORS [2003] NSWSC 402

HEARING DATE(S): 12/05/03

JUDGMENT DATE:
16 May 2003

JURISDICTION:
Equity

JUDGMENT OF: Bryson J at 1

DECISION: Control imposed by FPA orders applies to executors in capacity of executors as well as trustees: see [38]

CATCHWORDS: FAMILY PROVISION ACT - orders - interpretation of order in [1999] NSWSC 1165

LEGISLATION CITED: Family Provision Act 1982
Corporations Act 2001 s.1072F
Trustee Act 1925
Conveyancing Act 1919 s 153

CASES CITED: Ex parte Herman re Mathison (No. 2) [1961] NSWR 1145
Currabubula & Payla v State Bank of New South Wales [2000] NSWSC 232
Mees v Road Corporation [2003] FCA 410
Union Bank of Australia v Harrison, Jones and Devlin Ltd. (1910) 11 CLR 492,
Colytons Investments Pty Ltd. v McSorley (1962) 107 CLR 177

PARTIES :
Claude George Rene Cassegrain & Anne-Marie Cameron; Executors of the Estate of Francoise Genevieve Andree Cassegrain Late of Wauchope v Denis Cassegrain, John Baptiste Cassegrain, Catherine Dunn & Patrick Anthony Cassegrain

FILE NUMBER(S): SC 1737/02

COUNSEL: B.W. Rayment QC & Ms P. Gormly - Plaintiff
M. Cashion - 1st Dft
B. Coles QC & G. McNally - 2nd, 3rd & 4th Dfts.

SOLICITORS: Priest McCarron - Plaintiff
McCabe Terrill Lawyers - Dfts

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 16 MAY 2003

1737/02 Claude George Rene Cassegrain and Ann Marie Cameron v. Denis Cassegrain & Ors

JUDGMENT

1 HIS HONOUR: The plaintiffs seek a declaration establishing the meaning and effect of orders under the Family Provision Act 1982 which I made on 1 December 1999. The plaintiffs and the defendants are the adult sons and daughters of the late Françoise Genevieve Andree Cassegrain, who died on 18 May 1998, and was the widow and executrix of Gerard Rene Francois Cassegrain who died on 29 October 1993. Each had been given benefits of various kinds by their late father and in some instances by their late mother, and the provisions of the testatrix’ will and of my order interact with those provisions.

2 The testatrix’ last will dated 23 April 1998 appointed the plaintiffs to be her executors and trustees and they were granted probate of that will by this court on 2 July 1998. While the whole terms of the will are relevant I will set out its effect shortly and give some of its terms. Clause 1 is a revocation clause. Clause 2 is:

I APPOINT my children CLAUDE GEORGE RENE CASSEGRAIN and ANNE MARIE CAMERON as my Executors and Trustees (hereinafter referred to as my Trustees).

3 There are few later references in the will to the plaintiffs as executors; at most points they are referred to as trustees.

4 In clauses 3 to 11 of the will the testatrix made a number of gifts of property; most of these dispositions are specific dispositions of identifiable items of property. When referring to these gifts the Will speaks in terms of direct gifts by the testatrix to a…

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 Cassegrain v Cassegrain

Details

AGLC: Cassegrain v Cassegrain [2003] NSWSC 402
Case: [2003] NSWSC 402
Decision Date: 16 May 2003

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Cassegrain v Cassegrain concerned a dispute over the interpretation of a court order made in a family provision matter. The court was asked to determine the extent of an order requiring a party to pay a sum of money to another party. The parties involved in the case were the executor of a deceased estate and beneficiaries of that estate. The dispute arose from a prior court decision that ordered the executor to pay a certain amount to one of the beneficiaries. The court was required to decide whether this order meant that the executor had to pay the amount directly to the beneficiary or if it could be paid into court instead.

The court considered the language of the order and the relevant legal principles. It held that the order was clear and unambiguous, and that it required the executor to pay the sum directly to the beneficiary. The court rejected the argument that the order could be interpreted as allowing payment into court instead. The court held that this interpretation would defeat the purpose of the order, which was to ensure that the beneficiary received the money to which they were entitled. The court also noted that the order did not contain any language that suggested that payment into court was an acceptable alternative.

The final orders of the court were that the executor was required to pay the sum of money directly to the beneficiary, and that any payment into court would not satisfy the order. The court also noted that the executor could seek an order for contribution from other beneficiaries if they had received payments that should have been made to the beneficiary in question. Overall, the case highlights the importance of carefully considering the language of court orders and ensuring that they are properly interpreted and enforced.

Orders