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Drayson v Drayson

Drayson v Drayson

Case [2011] NSWSC 965 24 August 2011

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Supreme Court

New South Wales

Medium Neutral Citation: Drayson v Drayson [2011] NSWSC 965
Hearing dates: 21 & 22 July 2011
Decision date: 24 August 2011
Jurisdiction: Equity Division
Before: Ward J
Decision:
Property not held by deceased on a resulting or constructive trust as claimed by plaintiff. Order for provision made in favour of the plaintiff under the Succession Act 2006 (NSW) out of the estate of the deceased.

Catchwords: TRUSTS - whether deceased held property on a resulting or constructive trust for plaintiff - HELD - property not held by deceased on a resulting or constructive trust for plaintiff - SUCCESSION - family provision and maintenance - application by one of two children for provision from father's estate pursuant to s 59 of the Succession Act 2006 (NSW) - whether inadequate provision made for plaintiff and, if so, what provision ought to be made - HELD - provision inadequate - provision ordered for plaintiff
Legislation Cited: Conveyancing Act 1919 (NSW)
Family Provision Act 1982 (NSW)
Succession Act 2006 (NSW)
Cases Cited: Baumgartner v Baumgartner (1987) 164 CLR 137
Bhana v Bhana (2002) 10 BPR [97953]
Cetojevic v Cetojevic [2006] NSWSC 431
Cetojevic v Cetojevic [2007] NSWCA 33
Collings v Vakas [2006] NSWSC 393
Cooper v Dungan (1975) 9 ALR 93
Cropley v Cropley [2002] NSWSC 349; (2002) 11 BPR 20,171
Delaney v Jones [2008] NSWSC 229
Foley v Ellis [2008] NSWCA 288
Gazzola v Gazzola (1990) 92 ALR 45
Green v Green (1989) 17 NSWLR 343
Henderson v Miles (No 2) (2005) 12 BPR 23,579
Kalmar v Kalmar [2006] NSWSC 437
Mayfield v Lloyd-Williams [2004] NSWSC 419
McGrath v Eves [2005] NSWSC 1006
Muschinski v Dodds (1985) 160 CLR 583
Nelson v Nelson (1995) 184 CLR 538
Newcastle City Council v Kern Land Pty Ltd and Commonwealth Bank of Australia (1997) 42 NSWLR 273
Nicholls v Hall [2007] NSWCA 356
O'Loughlin v Low [2002] NSWSC 222
Ogden v Green [2003] NSWCA 352
Parianos v Melluish (Trustee) [2003] FCA 190
Pengilley v Public Trustee (unreported, NSWSC, 9 October 1985)
Re Buckland, deceased [1966] VR 404
Re Gilbert (1946) 46 SR (NSW) 318
Ryan v Hopkinson (1990) 14 Fam LR 151
Singer v Berghouse (No 2) (1994) 181 CLR 201
Singh v Singh [2004] NSWSC 109
Vigolo v Bostin (2005) 221 CLR 191
West v Mead [2003] NSWSC 161
Texts Cited: De Groot and Nickel, Family Provision in Australia (3rd edn)
Heydon and Leeming, Jacob's Law of Trusts in Australia (7th edn)
Ong, Trusts Law in Australia (2nd edn)
Category: Principal judgment
Parties: Nicholas Drayson (Plaintiff)
Terrance Drayson (Defendant)
Representation: Counsel
M Lawson (Plaintiff)
G McGrath (Defendant)
Solicitors
Atkinson Vinden (Plaintiff)
Jorian Blanch & Co (Defendant)

File Number(s): 10/138628

Judgment

HER HONOUR : In these proceedings claims are made by one of the sons of the late Peter Ernest Drayson (Peter Nicholas Drayson, usually referred to as Nicholas), in a Statement of Claim filed on 3 June 2010, against the deceased's other son (Terrance Drayson), in his…

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 Drayson v Drayson

Details

AGLC: Drayson v Drayson [2011] NSWSC 965
Case: [2011] NSWSC 965
Decision Date: 24 August 2011

CaseChat Overview and Summary

The case of Drayson v Drayson involved a dispute between two children over their father's estate. The plaintiff, one of the two children, sought a provision from their father's estate under section 59 of the Succession Act 2006 (NSW), arguing that inadequate provision had been made for them. The central issue was whether the deceased had held the property in question on a resulting or constructive trust for the plaintiff. The court had to determine if there was a valid trust arrangement and, if so, whether the provision made to the plaintiff was adequate.

The court examined the circumstances surrounding the ownership and disposition of the property by the deceased. It considered the principles of resulting and constructive trusts, and whether the evidence supported the existence of such trusts. The court also assessed the statutory criteria under section 59 of the Succession Act, focusing on whether the plaintiff had been adequately provided for and, if not, what provision ought to be made. The court found that the deceased did not hold the property on a resulting or constructive trust for the plaintiff. Furthermore, the court concluded that the provision made to the plaintiff was inadequate and ordered that additional provision be made.

In summary, the court held that there was no valid resulting or constructive trust in favour of the plaintiff, and that the provision made to the plaintiff was inadequate. The court ordered that further provision be made to the plaintiff from the deceased's estate under section 59 of the Succession Act 2006 (NSW).

Orders