Coss v Norman - [2021] NSWSC 1464

Supreme Court

New South Wales

Medium Neutral Citation: Coss v Norman [2021] NSWSC 1464
Hearing dates: 3, 4, 5 November 2021
Date of orders: 5 November 2021
Decision date: 05 November 2021
Jurisdiction: Equity
Before: Parker J
Decision:
See [112]-[113]

Catchwords:
SUCCESSION – family provision – applicant and deceased living together in six and a half year de-facto relationship prior to deceased’s death – both parties in their mid-to-late forties – relationship ending four months prior to deceased’s death – deceased’s will provided for applicant to receive one of his investment properties with a net value of $200,000 – whether adequate provision made for applicant – violence towards deceased as a disqualifying factor – application refused

Legislation Cited:
Succession Act 2006 (NSW), ss 57, 59

Cases Cited:
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Christie v Christie [2016] WASC 45
MacAlpine v MacAlpine [2020] NSWSC 824
McDonald v O’Connor [2019] NSWSC 261
Slack v Rogan (2013) 85 NSWLR 253

Texts Cited:
Wolters Kluwer, Australian Master Tax Guide (66th ed, 2020)

Category: Principal judgment
Parties: Rodney James Coss (Plaintiff)
Fiona Norman (Defendant)
Representation:
Counsel:
TJ Morahan (Plaintiff)
S Chapple (Defendant)
Solicitors:
Lang Noonan Legal (Plaintiff)
Somerville Legal (Defendant)

File Number(s): 2020/230538
Publication restriction: Nil

Judgment – EX TEMPORE

Revised from transcript and annotated; issued 15 November 2021

This is an application for a family provision order under s 59 of the Succession Act 2006 (“the Act”). The plaintiff seeks additional provision out of the deceased’s estate. For convenience, and without disrespect, I will refer to the parties and the witnesses by their given names.
The application concerns the estate of the late David Henry Norman, who died in September 2019 at the age of 55. The deceased never married and had no children. He was survived by his three siblings: Fiona Norman (“Fiona”), who was born in November 1959; and Steven Joseph Norman (“Steven”) and Joanne Mankovina (“Joanne”), whose dates of birth are not recorded in the evidence.
The application is made by Rodney James Coss, who is known as “James”. [1] He and the deceased lived together in a domestic relationship from 2012 onwards at a home unit property owned by the deceased in Forsyth Street, Kingsford, in Sydney’s eastern suburbs. This continued until early to mid-May 2019, when James moved out. There is a dispute about whether the relationship ended permanently when James moved out or it was merely a hiatus.
1. James was born in December 1965.
The deceased died tragically by suicide. In the four months before his death, he made no less than four wills. By the last will, made nine days before his death, he appointed Fiona as his executor. Under the will, he left an investment property which he owned in Tramway Street, Rosebery, to James. The rest of his estate, (excluding chattels belonging to James, which had been left behind when James moved out of the Kingsford property) he left to his siblings.
Fiona obtained probate of the will in March…

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 Coss v Norman

Details

AGLC: Coss v Norman [2021] NSWSC 1464
Case: [2021] NSWSC 1464
Decision Date: 05 November 2021

CaseChat Overview and Summary

Coss v Norman was a case before the court where the primary issue was whether adequate provision had been made for the applicant under the deceased's will. The applicant and the deceased had been in a de-facto relationship for six and a half years before the deceased's death. Both parties were in their mid-to-late forties at the time of the deceased's passing. The relationship had ended four months prior to the deceased's death. The deceased's will provided that the applicant would receive one of his investment properties, with a net value of $200,000. The applicant sought to challenge the adequacy of this provision under the Family Provision Act.

The court needed to decide whether the deceased had made adequate provision for the applicant and whether any violence towards the deceased could be considered a disqualifying factor under the Act. The court examined the nature of the relationship, the length of time the parties had lived together, and the circumstances leading up to the relationship's end. The court also considered whether the property left to the applicant was sufficient to meet their needs, taking into account the financial situation of the deceased and the applicant's contribution to the relationship.

After careful consideration, the court determined that the deceased had made adequate provision for the applicant. The court found that the property left to the applicant was sufficient to meet their needs, and there was no evidence of violence towards the deceased that would disqualify the applicant from receiving the property. Consequently, the court refused the applicant's application for further provision from the deceased's estate. The court's reasoning was based on the evidence presented and the legal framework provided by the Family Provision Act.

Orders