Haertsch v Whiteway

Case [2020] NSWCA 133


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Haertsch v Whiteway [2020] NSWCA 133
Hearing dates: 20 May 2020
Decision date: 03 July 2020
Before: Macfarlan JA; Meagher JA; Leeming JA
Decision:

(1) Allow appeal.

(2) Dismiss cross-appeal.

(3) Set aside orders 1, 2, 3, 4, 5, 6 and 7 made on 11 November 2016.

(4) Dismiss the amended statement of claim.

(5) Direct that if the parties cannot agree on the costs orders to be made in relation to the proceedings below and in this Court, they are to exchange and lodge with Meagher JA’s Associate within 14 days of the date of these orders written submissions as to the costs orders sought (those submissions not to exceed 5 pages). Those questions as to costs will then be dealt with on the papers.

Catchwords:

SUCCESSION – Family provision – Notional estate – Where property of the estate distributed – Where primary beneficiary deceased and her estate held by executor – Where notional estate order made by primary judge – Whether estate of deceased beneficiary able to be designated notional estate under Family Provision Act 1982 (NSW), s 24 – Appeal allowed.

SUCCESSION – Family provision – Claim by adult child – Proceedings not commenced within time – Where application made 12 and a half years out of time – Where primary beneficiary of testator now deceased – Where general assurances of a testamentary benefit given to applicant by deceased beneficiary – Whether sufficient cause shown to extend time – Whether primary judge erred in disregarding prejudice to deceased beneficiary and her estate in exercising discretion to extend time – Appeal allowed.

Legislation Cited:

Family Provision Act 1982 (NSW), ss 6(4), 6(5), 7, 8, 9, 16(1)(b), 16(2), 16(3)(b), 21, 22, 23, 24, 25, 27(2)

Interpretation Act 1987 (NSW)

Real Property Act 1900 (NSW), s 93

Succession Act 2006 (NSW), ss 57, 58, 59

Testator’s Family Maintenance and Guardianship of Infants Act 1916 (NSW), ss 5(1), 5(2A)

Cases Cited:

Commissioner of Stamp Duties (Q) v Livingston (1964) 112 CLR 12; [1964] HCA 54

Davison v Staley (unreported, NSWSC, 21 August 1986)

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

Easterbrook v Younger (1977) 136 CLR 308; [1977] HCA 16

Ernst v Mowbray [2004] NSWSC 1140

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kavalee v Burbidge (1998) 43 NSWLR 422

Light v Anderson [1992] NSWCA 136

Phillips v James (2014) 85 NSWLR 619; [2014] NSWCA 4

Prince v Argue [2002] NSWSC 1217

Public Trustee v Kidd [1931] NZLR 1

Richardson v Reardon [2006] NSWSC 1252

Stern v Sekers [2010] NSWSC 59

Vasconelos v Bonetig [2011] NSWSC 1029

White v Barron (1980) 144 CLR 431; [1980] HCA 14

Category:Principal judgment
Parties: Adrian Haertsch (as executor of the estate of Stephne Whiteway) (first appellant)
Adrian Haertsch (as executor of the estate of Donald Whiteway) (second appellant)
Elizabeth Whiteway (first respondent)
Jane French (second respondent)
Representation:

Counsel:

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Details
AGLC
Haertsch v Whiteway [2020] NSWCA 133
Case
[2020] NSWCA 133
Decision Date

CaseChat Overview and Summary

The appeal concerned a family provision claim brought by an adult child, Ms. Haertsch, against the estate of her deceased father, Mr. Whiteway. The primary judge had made orders designating certain property as notional estate under section 24 of the *Family Provision Act 1982* (NSW) and had extended the time for Ms. Haertsch to bring her claim, despite the significant delay of 12 and a half years. The executor of Mr. Whiteway's estate and the beneficiary of his residuary estate, Ms. Whiteway (who was also the deceased primary beneficiary of Mr. Whiteway's estate), appealed these orders.

The Court of Appeal was required to determine whether the estate of the deceased primary beneficiary, Ms. Whiteway, could be designated as notional estate under section 24 of the *Family Provision Act 1982* (NSW). Additionally, the Court had to consider whether sufficient cause had been shown to extend the time for Ms. Haertsch to commence her proceedings, given the substantial delay and the assurances of testamentary benefit she had received from Ms. Whiteway. The Court also had to assess whether the primary judge had erred in disregarding the prejudice to Ms. Whiteway and her estate when exercising the discretion to extend time.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in designating Ms. Whiteway's estate as notional estate. The Court reasoned that section 24 of the *Family Provision Act 1982* (NSW) was not intended to capture the estate of a deceased beneficiary in the manner ordered by the primary judge. Furthermore, the Court found that the primary judge had failed to give adequate weight to the prejudice suffered by Ms. Whiteway's estate due to the significant delay in commencing proceedings. The Court also dismissed a cross-appeal.

Consequently, the Court of Appeal set aside the orders made by the primary judge and dismissed Ms. Haertsch's amended statement of claim. The Court also made directions regarding the costs of the proceedings in both the primary court and the Court of Appeal.

Orders

Orders of the court

(1) Allow appeal.

(2) Dismiss cross-appeal.

(3) Set aside orders 1, 2, 3, 4, 5, 6 and 7 made on 11 November 2016.

(4) Dismiss the amended statement of claim.

(5) Direct that if the parties cannot agree on the costs orders to be made in relation to the proceedings below and in this Court, they are to exchange and lodge with Meagher JA’s Associate within 14 days of the date of these orders written submissions as to the costs orders sought (those submissions not to exceed 5 pages). Those questions as to costs will then be dealt with on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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