Gardiner v Gardiner (No 2) - [2012] NSWSC 1025

Supreme Court

New South Wales

Medium Neutral Citation: Gardiner v Gardiner (No 2) [2012] NSWSC 1025
Hearing dates: 16 August 2012
Decision date: 29 August 2012
Before: Associate Justice Macready
Decision:
(1) I dismiss the plaintiff's motion of 4 April 2012 with costs;
(2) I order the plaintiff to pay an occupation fee of $595 per week from 5 July 2012 to the date he moves out of the premises;
(3) I order the plaintiff to pay the defendant's costs of the defendant's motion of 28 May 2012.

Catchwords: FAMILY PROVISION - Succession Act 2006 - application for the setting aside of a family provision order in favour of a son of the deceased under UCPR 36.16(3A) - claim by defendant for orders enforcing the Court's order for vacation of the estate property
Legislation Cited: Succession Act 2006
Uniform Civil Procedure Rules 2005
Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300
De L v Director General, NSW Department of Community Services (No 2) (1997) 190 CLR 207
Gardiner v Gardiner [2012] NSWSC 269
Category: Consequential orders
Parties: Linton Gardiner (plaintiff)
Matthew Gavin Gardiner (defendant)
Representation: Counsel:
S Hill (plaintiff)
A Lakeman (defendant)
Solicitors:
Geoff Osborne and Associates (plaintiff)
Taperell Rutledge (defendant)

File Number(s): 2011/136886

Judgment

I heard this matter on 14 and 15 March 2012 and gave judgment on 16 March 2012. The case is reported as Gardiner v Gardiner [2012] NSWSC 269. On 21 March 2012 I made orders in accordance with Short Minutes of Order formulated by the parties and based on my reasons for judgment. Amongst other orders, I made an order that the plaintiff was to receive an additional legacy of $80,000 to be held on trust on his behalf.

There are now two applications flowing from the orders which I made in that matter. The first application is by the plaintiff by motion filed 4 April 2012 seeking that the judgment be set aside pursuant to Uniform Civil Procedure Rules 2005, r 36.16(3)(A). The application is based upon what is said to be a misapprehension by me of a factual matter dealt with in the judgment.

The other is a motion by the defendant filed 28 May 2012. That motion sought a Writ of Possession of the estate property at Dixon Avenue, Frenchs Forest and other relief. On 6 July 2012 Assistant Registrar Musgrave made orders by consent granting leave to the defendant to issue a Writ of Possession directed to the plaintiff who is in occupation of the property at Frenchs Forest. The plaintiff has not yet vacated the premises and the order now sought pursuant to that motion is that the plaintiff pay an occupation fee of $595 per week from 22 May 2012 to the date the plaintiff vacates the premises.

I turn to deal with the plaintiff's motion first. In my judgment at [55] - [60], I dealt with the defendant's situation in life. At [58] I said the following:

"Matthew and his trust have debts…

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 Gardiner v Gardiner (No 2)

Details

AGLC: Gardiner v Gardiner (No 2) [2012] NSWSC 1025
Case: [2012] NSWSC 1025
Decision Date: 29 August 2012

CaseChat Overview and Summary

The case of Gardiner v Gardiner (No 2) involved a dispute over the distribution of an estate following the death of a testator. The deceased's son, the defendant, had previously been granted a family provision order under the Succession Act 2006, which required the estate to provide for him. The plaintiff, who was the administrator of the estate, sought to set aside the family provision order, arguing that it should not have been granted in the first place. The plaintiff also sought orders enforcing the court's previous order for the defendant to vacate the estate property.

The legal issues before the court were whether the family provision order should be set aside and whether the plaintiff was entitled to orders enforcing the court's previous order for the defendant to vacate the estate property. The court had to consider the relevant provisions of the Succession Act 2006 and the circumstances of the case in determining these issues. The court also had to consider the principles of equity and fairness in making its decision.

The court found that the family provision order should not be set aside, as the defendant had made out a valid claim under the Succession Act 2006. The court also found that the plaintiff was entitled to orders enforcing the court's previous order for the defendant to vacate the estate property. The court held that the defendant had breached the terms of the family provision order by remaining in the estate property after being ordered to vacate it. The court considered that the plaintiff had suffered significant loss and damage as a result of the defendant's breach of the order, and that there was no justification for the defendant's conduct.

The court made orders enforcing the court's previous order for the defendant to vacate the estate property and awarding costs to the plaintiff. The court also dismissed the plaintiff's claim for the setting aside of the family provision order. The court held that the defendant was entitled to the benefits of the family provision order, and that it would be unjust to set it aside. The court considered that the defendant's entitlement to the order was not affected by his breach of the order for vacation of the estate property.

Orders