Hall v Hansen - [2008] NSWSC 1200

CITATION: Hall v Hansen [2008] NSWSC 1200

HEARING DATE(S): 03/11/08

JUDGMENT DATE :
14 November 2008

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraph 49

CATCHWORDS: Family Provision. Effect of abatement of claim under Family Provision Act 1982 when plaintiff dies during the course of the hearing. Order for interim provision made during course of hearing. Order made for payment of costs of interim provision. Order refused for costs of the hearing generally.

PARTIES: Florence Helen Hall v Grant Hansen and Sarah Hall (Estate of late Maxwell Brayshaw Hall)

FILE NUMBER(S): SC 4861/06

COUNSEL: Mr R Wilson for plaintiff
Mr A Jamieson for 1st defendant
Ms S Hall 2nd defendant in person

SOLICITORS: L Rundle & Co Solicitors for plaintiff
Abigails Solicitors for 1st defendant

- 1 -

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

ASSOCIATE JUSTICE MACREADY

FRIDAY 14 NOVEMBER 2008

4861/06 - FLORENCE HELEN HALL v GRANT HANSEN AND ANOR

JUDGMENT ON COSTS

1 HIS HONOUR: This is a matter in which the plaintiff made an application under s 7 of the Family Provision Act 1982 in respect of the late Maxwell Brayshaw Hall who died on 16 July 2005. The matter is before me to deal with a costs application following upon the death of the plaintiff in the course of the hearing.

2 The deceased was survived by his widow, the plaintiff, in the proceedings. The deceased and the plaintiff had been married before and they both had children by earlier marriages. The deceased had three daughters, one of whom, Sarah Hall, is a defendant in the proceedings.

3 The plaintiff’s daughter, Helen Hansen, looked after the plaintiff and the deceased and at different times she was involved in the management of the financial affairs of both the plaintiff and the deceased.

4 The deceased made his last will on 22 October 2003. Under that will he appointed his daughter, Sarah, and Grant Hansen, the husband of the plaintiff's daughter, as executors. Probate was taken out by Mr Hansen, who is now the executor of the will.

5 In clause 3 of the will a unit in Watson Street, Neutral Bay, was to be held by the trustees for his wife to reside there for her lifetime or until she remarried. The residue of his estate including the interest in and remainder in respect of the unit was to be held in four equal parts. One part each for his daughters Sarah, Robyn and Jennifer and the other part was to be held by Helen Hansen and her husband Grant Hansen. There was then a child substitution clause in respect of that gift.

6 Therefore the only asset in the estate is the interest of the deceased in the property at Watson Street, Neutral Bay, which was a 78% interest. The other 22.5% interest is held by the plaintiff and her daughter, Helen, as joint tenants. Leaving aside minor matters, the house, the only asset, is valued in the order of…

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 Hall v Hansen

Details

AGLC: Hall v Hansen [2008] NSWSC 1200
Case: [2008] NSWSC 1200
Decision Date: 14 November 2008

CaseChat Overview and Summary

The case of Hall v Hansen involved a dispute regarding family provision claims under the Family Provision Act 1982. The deceased, Hansen, had made a will which did not provide for his daughter, Hall. Hall sought to challenge the will under the Family Provision Act. During the course of the hearing, Hansen passed away, leading to the abatement of the claim. The court was required to determine the effect of this abatement on the proceedings, including an interim provision order and associated costs.

The central legal issue before the court was whether the abatement of the claim due to the death of the defendant during the hearing affected the validity of orders made for interim provision and the associated costs. Specifically, the court had to consider whether the abatement meant that the order for interim provision was nullified and whether it was appropriate to grant costs associated with the interim provision while denying costs for the hearing generally.

The court held that the abatement of the claim did not invalidate the order for interim provision made during the hearing. The court reasoned that the interim provision order was made in anticipation of the potential outcome of the claim and was thus a valid order even after the abatement. However, the court refused to grant costs for the hearing generally, distinguishing these from the costs associated with the interim provision, which were deemed appropriate. The court concluded that the interim provision order remained effective and that the costs for the interim provision should be paid, but the broader costs of the hearing were not awarded.

The final orders of the court were that the interim provision order remained valid and enforceable, and the costs associated with this interim provision were to be paid. However, the plaintiff's request for costs of the hearing generally was refused.

Orders