Legal Research
Cases
D'Albora v D'Albora

D'Albora v D'Albora

Case [1999] NSWSC 468 21 May 1999

No judgment structure available for this case.

Type to search within this case.

CITATION: D'Albora v D'Albora [1999] NSWSC 468

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3131/98

HEARING DATE(S): 17/05/99

JUDGMENT DATE:
21 May 1999

PARTIES :

Jasmine D'Albora v Anthony D'Albora

JUDGMENT OF: Master Macready at 1

COUNSEL : Mr R. Tregenza for the plaintiff
Mr J.E. Armfield for the defendant

SOLICITORS: Mr D.S. Harley, Merrylands, NSW for the plaintiff
Malouf Solicitors, Parramatta, NSW for the defendant

CATCHWORDS: Family Provision and Maintenance. Fully distributed estate. Application to designate property as notional estate. S27(1)(b) and (c) of Family Provision Act. Whether the substantial justice and merits or any other matters prevented such an order.; Notice of intended distribution published before distribution of estate. Consideration of s35 of the Family Provision Act and whether the Executor has a personal liability if estate distributed prior to the 18 months within which an application may be made.

CASES CITED: Guardian Trust of New Zealand v Public Trustee Ltd (1942) AC 115, Re Simpson (1950) CH 38 and Re Gimblett (1960) NZLR 664 applied.

DECISION: Paragraph 77

35

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER MACREADY

Friday 21 May 1999

3131/98 JASMINE ROSARIA D’ALBORA v ANTHONY D’ALBORA
JUDGMENT

1 MASTER MACREADY: This is an application under the Family Provision Act in respect of the estate of the late Ethel Doreen Quinn who died on 22 February 1997. She was survived by her daughter Sharon Quinn, two grandchildren, the plaintiff, Jasmine D’Albora and the defendant, Anthony D’Albora. The grandchildren are the children of the daughter, Sharon Quinn. Sharon has been given notice of the proceedings and she makes no claim.
2 By her will made 8 February 1996 the deceased left the whole of her estate to the defendant and appointed him Executor.
3 The assets of the deceased at the date of death consisted of her property 57 Boondilla Road, The Entrance and cash of $10,131.60. The house has been sold and the estate reduced to cash. Administration, funeral and other testamentary expenses have been paid and the balance, namely, $158,051.46 has been distributed to the defendant. He has subsequently purchased a house using that money and some borrowed funds.
4 There are costs which have been incurred by the parties in the proceedings. The defendant’s costs on the basis of the hearing would be for two days was $12,092. In the event the matter has only proceeded for one hearing day. The plaintiff’s costs on a two day basis were estimated at $15,400.
5 As there are difficulties in this case in determining whether the plaintiff was at any particular time wholly or partly dependent upon her grandmother, the deceased it is necessary to ensure that the chronology of the family history is understood. I turn to that question. The plaintiff who was born on 10 February 1971 is now 28. The defendant was born on 20 June 1973 and is now 25. In the mid to late 1970s the plaintiff’s parents lived at Kingsford and then Mallabar. At that time the plaintiff’s…

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 D'Albora v D'Albora

Details

AGLC: D'Albora v D'Albora [1999] NSWSC 468
Case: [1999] NSWSC 468
Decision Date: 21 May 1999

CaseChat Overview and Summary

In the matter of D'Albora v D'Albora, the Family Court was tasked with resolving issues arising from the distribution of a fully distributed estate. The dispute centred on the application by a beneficiary to designate certain property as the notional estate, pursuant to sections 27(1)(b) and (c) of the Family Provision Act. The applicant sought to challenge the fairness of the estate's distribution and to potentially recover an amount from the estate. The legal issues before the court were whether the substantial justice and merits of the case, or any other matters, prevented the granting of the application and whether the executor incurred personal liability if the estate was distributed before the 18-month period within which an application could be made.

The court carefully considered the statutory provisions and the circumstances of the case, including the timing of the notice of intended distribution and the subsequent distribution of the estate. The court assessed whether the executor's actions complied with the legislative requirements and whether the applicant's application was made within the prescribed timeframe. The court also examined whether the executor could be held personally liable for the estate's distribution under section 35 of the Family Provision Act.

Ultimately, the court found that the applicant's application to designate property as the notional estate was not precluded by the substantial justice and merits of the case. The court determined that the executor's distribution of the estate before the 18-month period did not automatically render the executor personally liable. The court concluded that the executor's actions were not in breach of the statutory provisions, and thus, the application was dismissed. The court's decision was based on a detailed analysis of the Family Provision Act and the specific facts of the case, ensuring that the applicant's rights under the Act were considered in the context of the estate's distribution.

Orders