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Gould v Purtle

Gould v Purtle

Case [2014] NSWSC 493 23 April 2014

Family Provision Orders

Compliance

Variation of Orders

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Gould v Purtle [2014] NSWSC 493
Hearing dates: 23 April 2014
Decision date: 23 April 2014
Jurisdiction: Equity Division
Before: Hallen J
Decision:
See Paragraph 60 of these reasons

Catchwords:
SUCCESSION - Failure by Plaintiff to comply with family provision order which order was made by consent of the parties - Whether additional orders may be made following the orders being entered by recording them in the court's computerised court record system - Orders may be made for the for the purpose of giving effect to the family provision order and which do not involve a variation to the substantive orders made by agreement of the parties.
PROCEDURE - Non-appearance by the Plaintiff at the hearing - UCPR rule 29.7
Legislation Cited: Civil Procedure Act 2005 (NSW)
Succession Act 2006 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Ciavarella v Polimeni [2008] NSWSC 541
Jeloudev v Lohman [2010] NSWSC 1229
Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group Inc [2007] NSWCA 195; (2007) 70 NSWLR 411
NSW Trustee & Guardian as Executor of the Will of Michael Robert Walsh (Deceased) v Gregory [2012] NSWSC 681
Phillips v Walsh (1990) 20 NSWLR 206
Raulfs v Fishy Bite Pty Ltd (No 3) [2013] NSWSC 1732
Smirski v Macander [2010] NSWSC 929
Category: Procedural and other rulings
Parties: Georgia Anne Gould (Plaintiff)
Donna Lea Purtle (Defendant)
File Number(s): 2013/19025

Judgment - EX TEMPORE (REVISED)

The Background

HIS HONOUR: These proceedings concern a notice of motion filed by the Defendant on 3 March 2014, in substantive proceedings settled, at mediation, on 5 July 2013.

In the substantive proceedings, the Plaintiff, Georgia Anne Gould, a child of Maxwell Henry Sanders ("the deceased") sought a family provision order out of his estate or notional estate pursuant to Chapter 3 of the Succession Act 2006 (NSW) ("the Act"). The Defendant named in the proceedings was Donna Lea Purtle, the sister of the Plaintiff, and the executrix of the Will of the deceased to whom Probate in common form had been granted.

The deceased's estate, as disclosed in the Defendant's submissions on the present application, was said to include two adjoining properties, situated at 7 Charlton Avenue South Lismore ("the Property") and at 9 Charlton Avenue South Lismore ("the Adjoining Property").

At the time of the events the subject of the present claim, the Plaintiff was represented by Messrs Paul Dunmeade & Co, solicitors. The Defendant was represented, as she continues to be, by Clayton James, Solicitor & Conveyancer.

The substantive matter initially came before me in the Family Provision List. On 19 April 2013, I ordered that the matter be referred to court-annexed mediation on 5 July 2013. The mediation proceeded on that date before Registrar Flaskas. The Plaintiff's claim for provision was resolved, with the Plaintiff and the Defendant, as well as the solicitor for each, signing a document reflecting the agreement that had been reached.

The orders and notations…

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 Gould v Purtle

Details

AGLC: Gould v Purtle [2014] NSWSC 493
Case: [2014] NSWSC 493
Decision Date: 23 April 2014

CaseChat Overview and Summary

In the case of Gould v Purtle, the dispute arose following a family provision order made by consent of the parties, where the plaintiff failed to comply with the order. The plaintiff's non-compliance led to the defendant seeking further orders from the court to enforce the original family provision order. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether additional orders could be made following the entry of the family provision order into the court's computerised record system, given that the orders were initially made by consent and not through a judicial determination. The court had to determine whether it could make further orders for the purpose of giving effect to the family provision order, without altering the substantive terms of the original order agreed upon by the parties. Additionally, the court considered whether the absence of the plaintiff at the hearing impacted the court's ability to make these orders.

The court held that it could make further orders to give effect to the family provision order, provided these orders did not involve a substantive variation of the original terms. The court found that the purpose of the additional orders was to enforce the original agreement and did not alter the agreed-upon terms. The court also noted that the absence of the plaintiff did not preclude it from making these orders, as the orders were procedural in nature and aimed at enforcing compliance with the existing family provision order. Consequently, the court issued further orders to ensure the plaintiff complied with the original family provision order.

The court ordered that the plaintiff comply with the family provision order within a specified timeframe and imposed penalties for non-compliance. The court also directed that the plaintiff pay the defendant's costs associated with the application for further orders.

Orders