Clarke v Croucher - [2015] NSWSC 230

Supreme Court

New South Wales

Medium Neutral Citation: Clarke v Croucher [2015] NSWSC 230
Hearing dates: 12 and 13 March 2015
Date of orders: 13 March 2015
Decision date: 13 March 2015
Jurisdiction: Equity Division
Before: Pembroke J
Decision:
See paragraph [40]

Catchwords: SUCCESSION – family provision – application by former son-in-law of testator
SUCCESSION – family provision – costs – unsuccessful plaintiff – appropriate order
EQUITY – constructive trust – need for clear and unequivocal representations – need for detrimental reliance
COSTS – costs of unsuccessful plaintiff – appropriate order
Cases Cited: Bowditch v NSW Trustee and Guardian [2012] NSWSC 702
Calderbank v Calderbank [1975] 3 All ER 333
Harkness v Harkness (No 2) [2012] NSWSC 35
McDougall v Rogers (Estaet of James Rogers); re Bodman [1972] Qd 12
Click here to enter text.Oakes v Oakes [2014] NSWSC 1312
Singer v Berghouse [1994] HCA 40; 181 CLR 201
Category: Principal judgment
Parties: Edward Richard Clarke - plaintiff
Michael Croucher – first defendant
Cameron Croucher – second defendant
Lynda Caroline Clarke – third defendant
Representation: Counsel:
L Ellison SC – for the plaintiff
G P George – for the first, second and third defendants
Solicitors:
Marsdens Law Group
Reimer Winter Williamson – for the first, second and third defendants

File Number(s): 2014/019355

Judgment – EX TEMPORE

This is a claim by the plaintiff arising out of the death of his former father-in-law. The deceased was Eric Arthur Croucher. He died in 2013 and left a will dated 19 October 2011. By that will he appointed his two sons, Michael and Cameron, as his executors. He gave his residence at Cambridge Gardens to his surviving daughter Lynda and he left the residue of his estate, which was modest, to Michael as to a one-third share, Cameron as to a one‑third share and two children of his deceased daughter Gillian as to a one‑sixth share each. The distributable value of the estate was said to be $488,283. The plaintiff was married to Lynda from 1988 until 2011. He left her in 2008 and she did not see him again until her father’s funeral in 2013.
The circumstances of the family which have given rise to the plaintiff’s claims were difficult in the extreme. After the deceased’s daughter Gillian died and her husband also died, two children were left – Dylan and Sarah. Lynda herself had three young boys from a previous relationship. The deceased endeavoured to care for his son Cameron who lived with him at the time and Dylan and Sarah. The plaintiff and Lynda were responsible for the care of their family being Lynda’s three sons.
The deceased was a man of modest means but wished to do the best thing for his family in the tragic circumstances in which they found themselves. He looked for a house big enough to hold nine people: Lynda, the plaintiff and the three boys plus Cameron, himself, Dylan and Sarah. He thought that if he could find a suitable place at 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 Clarke v Croucher

Details

AGLC: Clarke v Croucher [2015] NSWSC 230
Case: [2015] NSWSC 230
Decision Date: 13 March 2015

CaseChat Overview and Summary

The case of Clarke v Croucher involved a former son-in-law, Clarke, who sought family provision from the estate of the deceased, Croucher, his former father-in-law. The application was heard in the Supreme Court of Queensland. Clarke had been married to Croucher's daughter but was later divorced. Following the divorce, Clarke had no contact with Croucher and his family. Despite this, Clarke sought a family provision order from the estate, contending that Croucher had promised to provide for him in his will.

The primary legal issue was whether Clarke was entitled to a family provision order from the estate, given the lack of a direct financial relationship and the absence of any express promise by Croucher. Additionally, the court had to determine whether there was sufficient evidence to establish a constructive trust in favour of Clarke, and whether Clarke's reliance on any alleged promises was detrimental. The court also needed to decide the appropriate costs order for Clarke, given the outcome of his claims.

The court found that there was insufficient evidence to support a finding that Croucher had made any clear and unequivocal representation to Clarke that would give rise to a constructive trust. Furthermore, there was no evidence of detrimental reliance by Clarke on any such representation. The court held that Clarke had failed to establish a legitimate expectation of financial provision from Croucher's estate. As Clarke's claims were unsuccessful, the court made an order for Clarke to pay the respondent's costs. The court reasoned that given the nature and outcome of Clarke's claims, an appropriate order for costs was necessary to ensure just outcomes in the administration of justice.

Orders