de Blac v Lo - [2014] NSWSC 142

Supreme Court

New South Wales

Medium Neutral Citation: De Blac v Lo [2014] NSWSC 142
Hearing dates: 12 - 13 February 2014; written submissions 17 and 21 February 2014
Decision date: 27 February 2014
Jurisdiction: Equity Division - Expedition List
Before: Stevenson J
Decision:
Separate questions answered

Catchwords: SUCCESSION - family provision - whether beneficial interest in property forms part of deceased's estate - whether beneficial interest in property forms part of the notional estate; EQUITY - real property - beneficial interest - whether defendant, sister of the deceased, acquired a beneficial interest in the property - whether deceased estopped from denying that defendant acquired such interest; ESTOPPEL - equitable estoppel - estoppel by representation
Legislation Cited: Conveyancing Act 1919
Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Chang v Registrar of Titles (1976) 137 CLR 177
Kastrounis v Foundouradakis [2012] NSWSC 264
Khalid v Perpetual Limited [2012] NSWCA 153
McBride v Sandland (1918) 25 CLR 69
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Texts Cited: N Sneddon, R Bigwood and M Ellinghaus, Cheshire and Fifoot Law of Contract, 10th Aust ed (2012)
Category: Separate question
Parties: Iain Joseph Malcolm Alain De Blac (Plaintiff)
Shui Ying Lo (Defendant)
Representation: Counsel:
G E Underwood (Plaintiff)
J B King (Defendant)
Solicitors:
Malouf Solicitors (Plaintiff)
Gregory Falk & Associates (Defendant)

File Number(s): SC 2013/251443
Publication restriction: Nil

Judgment

Introduction

This is the determination of separate questions in a family provision case.

The plaintiff, Mr De Blac, seeks an order that provision be made for him out of the estate of the late Ms Siu Ying Lo ("the Deceased") for his maintenance and advancement in life pursuant to s 59 of the Succession Act2006 ("the Act").

The defendant, Ms Lo, is a sister of the Deceased. The Deceased named Ms Lo as her executrix and sole beneficiary in her will.

When she died, the Deceased was the registered proprietor of a property at South Granville ("the Property"), the current value of which is estimated by Ms Lo to be between $550,000 and $580,000 and by Mr De Blac between $580,000 and $630,000. The Property is unencumbered.

Apart from the Property, the value of the Deceased's estate is approximately $23,637.56, comprising cash on deposit and some jewellery.

The separate questions

On 29 November 2013 Pembroke J made an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005, that the following question be heard and decided separately from (and implicitly prior to) any other questions in the proceedings:

"Does the [Property] form part of the estate of the Deceased?"

The Property is registered in the Deceased's name. Thus, the legal estate in the Property forms a part of Deceased's estate. The real questions before me are whether, as Ms Lo contends, in the events that have happened, the beneficial interest to the Property is vested in her and forms no part of the Deceased's estate, or alternatively whether the Deceased, and thus the estate, is estopped from…

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 de Blac v Lo

Details

AGLC: De Blac v Lo [2014] NSWSC 142
Case: [2014] NSWSC 142
Decision Date: 27 February 2014

CaseChat Overview and Summary

The case of de Blac v Lo involved a dispute over family provision claims within the context of succession law. The dispute centred on whether a beneficial interest in a property formed part of the deceased's estate, and if so, whether it constituted part of the notional estate. The case was heard and determined by the Supreme Court of New South Wales. The central issue for the court was to determine whether the defendant, who was the sister of the deceased, had acquired a beneficial interest in the property and, if so, whether the deceased was estopped from denying that such an interest had been acquired.

The court had to consider whether the defendant had a beneficial interest in the property by virtue of representations made by the deceased. The court needed to examine whether the deceased's actions and statements constituted a representation that the defendant would have a beneficial interest in the property, and if the defendant had relied on this representation to her detriment. The court also had to consider whether the deceased was estopped from denying the existence of the beneficial interest due to the defendant's reliance on the deceased's representation.

The court concluded that the defendant had indeed acquired a beneficial interest in the property by virtue of the deceased's representation. The court found that the deceased had represented to the defendant that she would have a beneficial interest in the property, and the defendant had relied on this representation to her detriment by, among other things, foregoing other opportunities for financial gain. The court further held that the deceased was estopped from denying the existence of the beneficial interest because of the defendant's reliance on the deceased's representation. Consequently, the beneficial interest in the property formed part of the deceased's estate and, as such, part of the notional estate for the purposes of family provision claims.

The court ordered that the beneficial interest in the property held by the defendant be included in the calculation of the deceased's estate for the purposes of determining any family provision claims that may arise. The court further directed that the parties were to bear their own costs of the proceedings.

Orders