David John Collins Beverley Ann McGain and Lloyd Raymond Mead
FILE NUMBER(S):
CA 40814/02
COUNSEL:
A - David Davies SC / T Hodgson R - R Darke SC
SOLICITORS:
A - Harris & Company R - Lane & Lane
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
SC 2403/01
LOWER COURT JUDICIAL OFFICER :
Berecry AM
CA 40814/02
BEAZLEY JA HODGSON JA TOBIAS JA
16 July 2003
COLLINS v McGAIN & ANOR
Judgment
1 BEAZLEY JA: I have had the advantage of reading in draft the judgments of Hodgson and Tobias JJA. I agree with Hodgson JA, that the Acting Master erred in his finding that “the plaintiff must be able to identify particular needs that have not been adequately provided for”. I otherwise agree with the reasons of Tobias JA and the orders he proposes.
2 HODGSON JA: I agree with the orders proposed by Tobias JA and, subject to what I say below, substantially with his reasons.
3 At [31] of his judgment, the Acting Master correctly stated the question posed by s.9(2) of the Family Provision Act 1982 (the Act) in circumstances where, as in this case, there was no provision in the will for the plaintiff:
The Court must assess whether the absence of provision for a plaintiff resulted in an inadequacy in what, in all the circumstances, was the proper level of maintenance appropriate for the plaintiff having regard, amongst other things, to his financial position, the size and nature of the estate of deceased, totality of the relationship between the plaintiff and the deceased and the relationship between the deceased and other persons who have a legitimate claim upon her bounty.
4 In those circumstances, I would not have considered it necessarily an error for the Acting Master to have dismissed the claim on the basis that the appellant had not demonstrated a “need”, because “need” could be considered a shorthand expression for inadequacy in provision for proper maintenance.
5 However, the Acting Master went further, in saying that “the plaintiff must be able to identify particular needs that have not been adequately provided for”. I think that is suggestive of error, because there may be a difference between the level of maintenance provided…
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
AGLC
Collins v McGain [2003] NSWCA 190
Case
[2003] NSWCA 190
Decision Date
CaseChat Overview and Summary
In *Collins v McGain*, the New South Wales Court of Appeal considered an appeal against an application for an order making provision for the appellant out of the respondent's estate, based on the appellant's alleged need. The parties involved were the appellant, seeking provision from the estate, and the respondent, representing the estate.
The central legal issue before the Court of Appeal was whether the primary judge had erred in refusing to make provision for the appellant from the respondent's estate. This required the Court to assess the appellant's claim of need against the circumstances of the estate and the deceased's testamentary intentions.
The Court of Appeal ultimately dismissed the appeal. While the specific reasoning of the primary judge is not detailed in the provided text, the appellate court's decision indicates that they found no error in the refusal to make provision. The appeal was dismissed with costs awarded to the respondent.