Hanlon v Evans - [2009] NSWSC 1288

CITATION: Hanlon v Evans [2009] NSWSC 1288

HEARING DATE(S): 19/11/09

JUDGMENT DATE :
17 December 2009

JURISDICTION: Equity Division

JUDGMENT OF: Macready AsJ at 1

DECISION: Paragraphs 27 and 28

CATCHWORDS: PROCEDURE - judgments and orders - actions on judgments – hearing of re-opened case – further evidence regarding plaintiff’s financial circumstances – plaintiff’s claim dismissed - SUCCESSION - family provision and maintenance - Application for provision by two daughters of deceased. Deceased owned part of country property which was left mainly to a son.

PARTIES:
Elizabeth Ellen Hanlon v David Lewis Evans & David John Evans
Robwyn Anne English v David Lewis Evans & David John Evans

FILE NUMBER(S): SC 4360/06; 5745/07

COUNSEL: Mr J Drummond for plaintiffs
Mr CF Hodgson for defendants

SOLICITORS: Friedlieb Byrne for plaintiffs
Tress Cos for defendants

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 17 December 2009

4360/06 Elizabeth Ellen Hanlon v David Lewis Evans
& David John Evans
5745/07 Robwyn Anne English v David Lewis Evans
& David John Evans

JUDGMENT

1 His Honour: In this matter the principal judgment was delivered on 3 June 2009. There was an application to re-open the case and I gave judgment on 8 September 2009. I ordered that the defendants have leave to re-open their case to further cross-examine the plaintiff, Elizabeth Hanlon, and tender any evidence as to the sale of share in BFB Logistics Pty Ltd.

2 Thereafter the application was heard on 19 November 2009 and submissions were received by 10 December 2009.

3 On the 19 November 2009 hearing there was additional affidavit evidence from the plaintiff, Elizabeth Hanlon, the first defendant David Lewis Evans, the second defendant, David Evans, and his wife Debbie Evans. As would be expected this included evidence from Elizabeth concerning the receipt of the $468,639.75 for the sale of the BFB Logistics Pty Ltd shares on 4 June 2009. Elizabeth’s evidence updated her financial circumstances following upon the receipt of those funds.

4 In my earlier judgment of 3 June 2009, I set out the financial circumstances of Elizabeth Hanlon and her husband at paragraphs 35 to 38. They had assets of some $120,000. The evidence discloses that their total assets are now as follows:

(i) Real estate – 29 Deutchner Street, Temora
$375,000.00

(ii) Cash:

(a) NAB Account 6701

3,475.43

(b) NAB Account 9147

55,155.89

(c) NAB account 6257

(928.25)

59,559.87

(d) South West Slopes Credit Union

Account No. 1

1,748.21

Account No. 2

50.00

1,798.21

(e) Superannuation

Elizabeth

55,704.65

Bill

86,443.00

142,147.65

Other:

(f) Membership of Ski Lodge
(g) Furniture

(h) Shares

20,000.00
85,000.00

3,686.00

Less: Tax Liability incl. Capital Gains Tax on sale of BFB shares

-20,196.59

Net Assets

$666,995.14

5 Apart from superannuation set out above in her two Hesta superannuation polices Elizabeth has death benefits totalling $720,000. Of of her husband, Bill’s superannuation policies has death benefits of $121,103.85.

6 So far as Elizabeth and Bill’s income is concerned they now receive…

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 Hanlon v Evans

Details

AGLC: Hanlon v Evans [2009] NSWSC 1288
Case: [2009] NSWSC 1288
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the case of Hanlon v Evans, the deceased left a will whereby the majority of his estate, including a country property, was left to his son, with a minor bequest to his two daughters. The daughters brought an application under the Family Provision Act, seeking financial provision from the estate. The court was required to determine whether the daughters were in need of maintenance from the estate and if it was just and equitable to grant them provision. The primary legal issue was whether the daughters were in need of maintenance from the estate, given their existing financial resources and the nature of the bequests made by the deceased.

The court considered the daughters’ financial circumstances, including their employment, income, and personal assets. It was noted that the daughters were gainfully employed and owned a house, which was their primary residence. The court held that the daughters were not in need of maintenance from the estate as they had sufficient means to support themselves. The court also considered whether it was just and equitable to grant the daughters provision from the estate, taking into account the deceased’s intention as expressed in his will and the daughters’ financial circumstances. The court concluded that it was not just and equitable to grant the daughters any provision from the estate.

The court dismissed the daughters’ application for financial provision, holding that they were not in need of maintenance and that it was not just and equitable to grant them provision from the estate. The court emphasised the importance of considering the deceased’s intentions and the daughters’ existing financial resources in reaching its decision. The final orders of the court were that the application for financial provision by the daughters be dismissed, with each party to bear their own costs of the application.

Orders