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Ford v Simes

Ford v Simes

Case [2008] NSWSC 1120 19 December 2008

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CITATION: Ford v Simes [2008] NSWSC 1120

HEARING DATE(S): 22/10/08

JUDGMENT DATE :
19 December 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

CATCHWORDS: Family Provision. Application by adult son at present in prison. Son sees the deceased once in the last 14 years of deceased's life. Application out of time and after distribution of estate. Plaintiff being a felon needs leave to bring proceedings. Consideration of whether there were any special circumstances as required by s28(5)(d) of the Family Provision Act. Held there were none and proceedings dismissed.

PARTIES: Stuart Cecil Ford v Natalie Ann Vaisey Simes

FILE NUMBER(S): SC 2091/2007

COUNSEL: Mr RD Marshall for plaintiff
Mr CP Locke for defendant

SOLICITORS: Patey & Murphy Solicitors for plaintiff
AE Dunne solicitor for defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

Friday 19 December 2008

2091 of 2007 STUART CECIL FORD v NATALIE ANN VAISEY SIMES

JUDGMENT

1 HIS HONOUR: This is an application under the Family Provision Act 1982 in respect of the estate of the late Cecil Means Ford who died on 16 March 2004 aged 90 years. The deceased was survived by his children the plaintiff and the defendant. His former wife, Gladys Dorothy Ford, who died on 8 October 2004, also survived him.

Last will of the deceased

2 The deceased made his last will on 18 December 2000. Under his will he appointed the defendant, his daughter, his executor and trustee and gave her the whole of his estate.

Assets in the estate

3 The substantial asset in the estate was a number of shops at Wilson Road, Mount Hutton which are presently valued at $1.1 million. The deceased had a small sum in various bank accounts which have been collected. After administration expenses and collection of the bank accounts the defendant received $2,262.19. The realty was transferred to the sole beneficiary prior to 30 June 2004.

Family history

4 The plaintiff, Stuart Cecil Ford, was born in Merewether, Newcastle in September 1953 and his sister and the defendant, Natalie Ann Vaisey Simes, was born in July 1957.

5 In 1963 their parents separated and the deceased went to live in his dance studio in Beaumont Street, Hamilton where he stayed until 1969. During this time he would come home to shower and use other facilities.

6 In 1966 the deceased was put on ‘good behaviour’ bond for alleged violence towards his wife.

7 In 1966 the plaintiff attended Newcastle Boys High School where he attained an interest in cinema projection. The deceased purchased the plaintiff’s first cinema projector which the plaintiff set up in the shed at his mother’s home.

8 In 1969 the plaintiff moved into the studio with the deceased for a few weeks until as a result of court proceedings he returned to live with his mother until March 1970.

9 In 1969 the plaintiffs’ parents commenced divorce proceedings and in due course they were divorced.

10 In 1969…

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 Ford v Simes

Details

AGLC: Ford v Simes [2008] NSWSC 1120
Case: [2008] NSWSC 1120
Decision Date: 19 December 2008

CaseChat Overview and Summary

The case of Ford v Simes involved an application by an adult son, Ford, currently incarcerated, seeking provision from the estate of his deceased father, Simes. Ford's application was made out of time and after the estate had been distributed. Notably, Ford had only seen his father once in the final 14 years of Simes' life, and due to his status as a felon, Ford required leave to bring the proceedings under section 28(5)(a) of the Family Provision Act. The primary legal issue before the court was whether there were any special circumstances as required by section 28(5)(d) of the Family Provision Act that would justify Ford's application being heard despite the procedural delays and his limited contact with his father.

The court examined the statutory criteria for special circumstances and found that Ford had not demonstrated any that would warrant the application being considered. The court noted that Ford's infrequent contact with his father, coupled with his status as a convicted felon, did not constitute the exceptional circumstances necessary to permit the late application. Given the absence of such circumstances, the court determined that Ford's application was both out of time and without merit. Consequently, the application was dismissed, and the court held that Ford had not satisfied the requirements for leave to bring the proceedings under the Family Provision Act.

The court's decision was grounded in the statutory provisions of the Family Provision Act, which demand stringent adherence to procedural requirements and the presence of special circumstances to justify any deviation from these norms. As Ford had failed to demonstrate any such circumstances, his application was dismissed. The court emphasised the importance of the statutory framework in guiding decisions concerning family provision claims, particularly in cases involving incarcerated applicants with limited familial ties. The final orders of the court were that Ford's application for provision from his father's estate was dismissed, and Ford was not granted leave to bring the proceedings.

Orders