Diver v Diver - [2007] VSC 146

The

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4291 of 2005

IN THE MATTER of Part IV of the Administration and Probate Act 1958

IN THE MATTER of the Will and Estate of William Edwin Diver (deceased)

BETWEEN:

LEE KAMKE DIVER (also known as LEIH KAMKE DIVER) by her Administrator ANZ Executors & Trustee Company Limited	Plaintiff
V
BEVERLEY ANNE DIVER and OTHERS (who are sued as the executors of the will of William Edwin Diver deceased)	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2007
DATE OF JUDGMENT:	22 May 2007
CASE MAY BE CITED AS:	Diver v Diver
MEDIUM NEUTRAL CITATION:	[2007] VSC 146	First amendment 24 May 2007 Second amendment 30 May 2007

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Guardianship and Administration – Plaintiff with a disability – Proceeding brought by administrator of plaintiff's estate – Compromise of proceeding – Settlement sum payable to plaintiff with a disability – Whether administrator or Senior Master should manage the settlement sum - Guardianship and Administration Act 1986 (Vic) s. 66(3), Administration and Probate Act 1958 (Vic) Part IV, Supreme Court Act 1986 (Vic) ss. 113(1), 113B(1), 113B(2), Supreme Court (General Civil Procedure) Rules 2005 (Vic), Rules 77.01(b), 79.06

Testator's Family Maintenance - Plaintiff with a disability – Proceeding brought by administrator of plaintiff's estate – Compromise of proceeding – Settlement sum payable to plaintiff with a disability – Whether administrator or Senior Master should manage the settlement sum - Guardianship and Administration Act 1986 (Vic) s. 66(3), Administration and Probate Act 1958 (Vic) Part IV, Supreme Court Act 1986 (Vic) ss. 113(1), 113B(1), 113B(2), Supreme Court (General Civil Procedure) Rules 2005 (Vic), Rules 77.01(b), 79.06.

Practice and Procedure – Jurisdiction and powers of Masters – Plaintiff with a disability – Proceeding brought by administrator of plaintiff's estate – Compromise of proceeding – Settlement sum payable to plaintiff with a disability – Whether administrator or Senior Master should manage the settlement sum - Guardianship and Administration Act 1986 (Vic) s. 66(3), Administration and Probate Act 1958 (Vic) Part IV, Supreme Court Act 1986 (Vic) ss. 113(1), 113B(1), 113B(2), Supreme Court (General Civil Procedure) Rules 2005 (Vic), Rules 77.01(b), 79.06.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K McMillan QC	Bruce M Cook & Associates
For the Defendants	Mr R H Miller	Deacons
For the Senior Master’s (Funds In Court) Office	Mr S. Wharton, by leave, as amicus curiae

HIS HONOUR:

I Facts

William Edwin Diver (“the deceased”) died on 7 July 2003. He left a large estate, comprising assets at that time of approximately $50 million. Since then, the value of the estate has grown to over $65 million.

The deceased is survived by his de facto common law wife Patricia Diver, six natural children (one of whom is the plaintiff), two step children, the half-sister of the plaintiff and his second wife Beverley Anne Diver.

The deceased left a will dated 29 June 2001. On 28 July 2004, probate of…

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 Diver v Diver

Details

AGLC: Diver v Diver [2007] VSC 146
Case: [2007] VSC 146
Decision Date: 22 May 2007

CaseChat Overview and Summary

The case of Diver v Diver involved the plaintiff, who had a disability, and was represented by their estate's administrator. The dispute centred on the management of a settlement sum resulting from a compromise of proceedings. The case was heard in the Supreme Court of Victoria. The central legal issues revolved around determining who should manage the settlement sum: the administrator of the estate or the Senior Master of the Supreme Court.

The court needed to interpret and apply the Guardianship and Administration Act 1986 (Vic), the Administration and Probate Act 1958 (Vic), and the Supreme Court Act 1986 (Vic). Specifically, the court examined sections 66(3), 113(1), 113B(1), and 113B(2) of these acts, along with relevant rules from the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The court also considered the implications of Rules 77.01(b) and 79.06 on the jurisdiction and powers of the Masters in this context.

The court determined that under the statutes and rules in question, the Senior Master of the Supreme Court had the authority to manage the settlement sum. This decision was based on the specific provisions of the Guardianship and Administration Act 1986 (Vic) and the Administration and Probate Act 1958 (Vic), which outline the roles and responsibilities of the Senior Master in such matters. The court found that these statutory provisions and the rules provided the necessary framework for the Senior Master to take control over the settlement fund. This decision ensured that the settlement sum would be managed in accordance with the best interests of the plaintiff with a disability.

The court ordered that the settlement sum be placed under the control of the Senior Master, allowing for appropriate management and oversight.

Orders