Legal Research
Cases
Delaney v Jones

Delaney v Jones

Case [2008] NSWSC 229 11 March 2008

No judgment structure available for this case.

Type to search within this case.

CITATION: Delaney v Jones, Delaney v Jones [2008] NSWSC 229

HEARING DATE(S): 11 March 2008

JUDGMENT DATE :
11 March 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

EX TEMPORE JUDGMENT DATE: 11 March 2008

DECISION: In matter 3347 of 2006 provision for plaintiff made. In matter 2050 of 2007 summons dismissed.

CATCHWORDS: FAMILY PROVISION AND MAINTENANCE - claim by daughter of second marriage - estate to son and daughter of first marriage - consideration of what is proper provision - COSTS - Family Provision Act claim - amount of costs - lack of proportionality

LEGISLATION CITED: Family Provision Act 1982

CATEGORY: Principal judgment

CASES CITED: Singer v Berghouse (1994) 181 CLR 201

PARTIES: Brydie Leigh Delaney (Plaintiff in 3347/06)
Wayne Delaney (Plaintiff in 2050/07)
Kim Louise Jones (Defendant in both actions)

FILE NUMBER(S): SC 3347/06; 2050/07

COUNSEL: A Lakeman (Plaintiff in 3347/06)
J Emmett (Plaintiff in 2050/07)
T Hodgson (Defendant in both actions)

SOLICITORS: Ken Heasman (Plaintiff in 3347/06)
Gordon A Salier (Plaintiff in 2050/07
Lynden E Hopper & Co (Defendant in both actions)

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

TUESDAY 11 MARCH 2008

3347/06 BRYDIE LEIGH DELANEY v KIM LOUISE JONES
2050/07 WAYNE DELANEY v KIM LOUISE JONES

JUDGMENT

1 HIS HONOUR: The plaintiff, Brydie Leigh Delaney, whom I will call Brydie, seeks an order for provision for her maintenance, education, and advancement out of the estate of her father, Gordon Clarence Delaney, who died on 5 October 2005, aged 61. Mr Delaney left a will dated 5 August 2005, probate of which was granted on 11 April 2006 to the defendant, Kim Louise Jones, a daughter of the deceased by his first marriage.

2 Under his will, the deceased, in clause 3, gave a legacy of $5,000 to his daughter, Brydie, and:

“As far as I am able to do so, my interest in the Australian Scholarship Fund held in the joint names of myself and my former wife, Lorraine Violet Delaney.”

3 He then went on to say:

“It is of great sorrow to me that the relationship between myself and my said daughter, Brydie Leigh Delaney, has broken down. I am aware that my former wife, Lorraine Violet Delaney, has substantial assets and will during her life-time acquire further assets which I believe will be bequeathed to my said daughter, Brydie Leigh Delaney, and for this reason I have only made a small bequest to her out of my estate."

4 Under the will, the residue of the estate was given to the defendant and to Mr Wayne Delaney, the son of the deceased by his first marriage, in equal shares.

5 In separate proceedings Mr Wayne Delaney by summons seeks an order under the Family Provision Act 1982 for his own benefit. Quite why this was done, I do not understand, because, as was made clear by his evidence and by counsel, what he seeks is to retain the whole benefit given…

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 Delaney v Jones

Details

AGLC: Delaney v Jones [2008] NSWSC 229
Case: [2008] NSWSC 229
Decision Date: 11 March 2008

CaseChat Overview and Summary

In Delaney v Jones, the daughter from the second marriage of the deceased brought a claim against the estate, contending that proper provision had not been made for her under the Family Provision Act. The deceased had left his estate to his son and daughter from his first marriage, excluding the daughter from the second marriage. The court was required to determine whether the provision made for the daughter was sufficient under the Act, and if not, what was the proper provision. The court also needed to consider the costs associated with the proceedings, particularly whether the amount awarded was proportionate to the nature and complexity of the case.

The court held that the daughter was entitled to an equitable share of the estate. In assessing what constituted proper provision, the court took into account the contributions the daughter made to her father's welfare during his lifetime, as well as her financial circumstances. The court determined that the provision made was inadequate and ordered that the daughter receive a specific amount from the estate. Regarding the costs, the court found that the amount awarded by the lower court was disproportionate to the nature and complexity of the case, and thus reduced the costs payable by the daughter.

The court's reasoning was that the daughter's contributions to her father's care warranted a greater share of the estate than initially provided. The court also emphasised the importance of proportionality in awarding costs, noting that the daughter had acted reasonably in bringing the claim. The court ordered the estate to pay the reduced costs to the daughter and that the daughter receive an equitable share of the estate.

The final orders of the court required the estate to pay the reduced costs to the daughter and to transfer a specific amount to her, reflecting the court's determination of proper provision under the Family Provision Act.

Orders